a sale made in another State and valid by the law of that State, will not be held void in Massachusetts, from the bare fact of the knowledge or belief of the vendor, of the purchaser's intent to re-sell in Massachusetts in violation of law.

-no more- - and

In commenting upon this case, Thomas, J., in Webster v. Munger, 8 Gray, 587, expresses his disapprobation of the rule as there laid down: "In my judgment," he says, "it was not rightly decided;' and he claims that if the rule be correct it should not be extended. "The case at bar," he says (Webster v. Munger, much relied upon by the plaintiff here), "does not fall within the rule. The distinction is sound between a case where a seller simply has knowledge of the illegal design where, having such knowledge, he makes a sale with a view to such design, and for the purpose of enabling the purchaser to effect it." "In the case before us," he continues, "the plaintiff was a citizen of and residing in this commonwealth. The evidence shows his knowledge of the illegal business in which the defendant was engaged. One of the orders was taken by the plaintiff at the domicile of the defendant in this State. In one of the written orders, the illegal purpose for which the liquor was wanted, and the time when it would be wanted for that purpose, were indicated, and the plaintiff was urged not to fail in forwarding it for that end. It was on this posture of the evidence that the jury were instructed: '1st. That if the contract of sale was made in Hartford, where it was a legal transaction, the plaintiff could recover, unless for the reasons stated in the further instructions of the court, which were, 2d. That if the sales were made in Hartford, by the plaintiff to the defendant, with a knowledge on the part of the plaintiff that the liquors were to be re-sold in this commonwealth contrary to law, or if, when the plaintiff sold the liquors, he had reasonable cause to believe that they were to be re-sold by the defendant contrary to the laws of this commonwealth, and the sales were made by the plaintiff with a view to such re-sale, then, or in either of these cases, the plaintiff cannot maintain this action.' Under these instructions, to have found a verdict for the defendant, the jury must have been satisfied, not merely that the plaintiff had knowledge of the illegal purpose of the defendant, but that he sold with reference to it, and for the purpose of enabling him to effect it. In this view, the instructions are thoroughly sound in principle, and do not conflict with the cases decided."

In Finch v. Mansfield, 97 Mass. 89, the order for the liquors, the price of which was the consideration of the promissory notes in suit, was solicited from the defendant, at his place of residence, by the plaintiff's agent, who was a citizen of Connecticut, as were also his principals. The order was transmitted by the agent to the plaintiffs in Connecticut, who filled it there, and forwarded the goods to the defendant in Massachusetts, who paid the freight, in pursuance of

his understanding with the agent. The price of the goods was agreed upon between the agent and the defendant at the time of the order. On a previous occasion the agent had, in like manner, solicited from the defendant and forwarded to the plaintiffs a like order, which was, in like manner, filled by them, and was paid by the defendant to the agent. It was held that the judge rightly refused to rule, on these facts, that the sale was made in Massachusetts, and submitted to the jury to determine the place of sale, with instructions that if the agent merely solicited from the defendant the order and forwarded it to the plaintiffs in Connecticut, who thereupon filled it and delivered the goods to a common carrier, directed to the defendant in Massachusetts, the sale was made in Connecticut.

The peculiar law of Massachusetts, applicable to the case, manifestly controlled the decision in this, as in the preceding case of Webster v. Munger.

The general statutes of Massachusetts (ch. 86, § 1) provide that "no action of any kind shall be had or maintained in any court, for the price of any liquor sold in any other State for the purpose of being brought into this commonwealth, to be here kept or sold in violation of law, under such circumstances that the vendor would have reasonable cause to believe that the purchaser entertained such illegal purpose." It was undoubtedly in view of this statute, and not of any independent principle of the common law, that Hoar, J., used this language: "The plaintiffs, who were traders in Connecticut, might lawfully sell the liquors there, unless they knew that they were intended to be used in violation of the laws of Massachusetts."

But finally, this provision of the general statutes in Massachusetts was repealed; and thereupon the courts proceeded to expound again the doctrines of the common law upon this subject; and Colt, J., delivering the opinion of the court in Adams v. Coulliard, 102 Mass. 167, said: "The verdict of the jury, in this case, establishes the facts that the liquors, the price of which the plaintiff seeks to recover, were sold to the defendant in New York; and that the plaintiff had reasonable cause to believe, but had no knowledge, that they were to be brought into this State for the purpose of being sold here in violation of law.

"The action was commenced May 25, 1868. Under the general statutes (ch. 86, § 61), it could not have been maintained. The statute effects the remedy, and was repealed by the statute of 1868, chapter 141, before this suit was commenced. The cause of action still remained, and it arose out of a contract valid by the laws of the place where it was made. It is claimed, on the part of the defendant, that the contract originated in the purpose to violate a known law of this State; and that our courts will not lend their aid, and afford a remedy thereon, even after the repeal of such law. To do this, it is said, would violate an elementary principle of the common law.

The illegality of the contract must be determined by the law as it existed at the time the contract was entered into. If then illegal at the place where the contract is sought to be enforced, the rule applies. "It is not necessary, here, to consider whether the general rule has any modifications, when applied to contracts made out of the State, or to contracts made solely with reference to a violation of the revenue laws. In order to make the plaintiff, under any circumstances, a participant in such unlawful sale, at common law, it is necessary that he should, at least, have knowledge of the unlawful purpose. In some early cases it was held that mere knowledge of the unlawful purpose of the buyer, on the part of the seller, without further act, where the illegal use to be made of the goods was no inducement in the mind of the seller, would not vitiate the sale so as to deprive the seller of his remedy. Clearly, it is not enough, if he has only reasonable cause to believe that a violation of the law is intended. The statute alone introduces this element, and upon its repeal the rule at common law only applies."

With much deference, I am constrained to say that the distinction suggested in the foregoing remarks between mere knowledge and mere reasonable cause of belief, seems to me thin and shadowy.

However this may be, the case of Adams v. Coulliard is precisely the case we are now considering, and is an express authority to the point that, at common law, and independent of statutory provisions, reasonable cause of belief, on the part of the seller of goods, that the purchaser buys for the purpose of carrying

them into another State to be there re-sold in violation of law, does not invalidate the sale.

I propose now to revert to the cases already spoken of which are collected and commented upon by Judge Metcalf in his work on Contracts, 260, 261. The leading case in England is that of Holman v. Johnson, Cowp. 341, where the plaintiff, residing at Dunkirk, had sold the defendant a quantity of tea, knowing that the latter intended to smuggle it into England, but had himself no concern in the smuggling, and merely sold the tea to the defendant as he would have sold to any other person, in the ordinary course of trade. The action was brought for the price of the tea; and it was held that thre plaintiff could recover. Lord Mansfield, in delivering the opinion of the court, used the following language: "Is there any law of England transgressed by a person making a complete sale of a parcel of goods at Dunkirk and giving credit for them? The contract is complete, and nothing is left to be done. The seller indeed knows what the buyer is going to do with the goods, but has no concern in the transaction itself. It is not a bargain to be paid in case the vendee should succeed in landing the goods, but the interest of the vendor is totally at an end, and his contract complete, by the delivery of the goods at Dunkirk."

The reasoning of this case rests entirely upon the

fact that the contract of sale had no reference to or connection with the subsequent disposition of the goods; that mere knowledge of the unlawful intent does not make the vendor a participator in the guilt of the purchaser.

Such also is the principle recognized in Faikney v. Reynous, 4 Burr. 2069. Lord Mansfield, who delivered the opinion in this case also, says "the seller indeed knows what the buyer is going to do with the goods, but the interest of the vendor is totally at an end, and his contract complete by the delivery of the goods." Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 id. 466; and Waymell v. Reed, 5 id. 599, were all cases in which the plaintiff sold the goods with knowledge that the purchaser intended to smuggle them; and in each case the plaintiff was nonsuited; but they all differed from Holman v. Johnson in this, that in each of these cases, in addition to knowledge of the purchaser's criminal intent, the plaintiff did some act in aid of and to facilitate the smuggling of the goods. Such additional act, in direct furtherance of the purchaser's guilty design, was held to make the plaintiff particeps criminis.

In Waymell v. Reed, Buller, J., says: "In Holman v. Johnson the seller did not assist the buyer in the smuggling. He merely sold the goods in the common and ordinary course of trade; but this case does not rest merely on the circumstances of the plaintiff's knowledge of the use intended to be made of the goods; for he actually assisted the defendant in the act of smuggling by packing the goods up in a manner most convenient for that purpose."

In Pellecat v. Angell, 2 Crompt. Mees & Ros. 311, the court held, that the plaintiff could recover the price of the goods, notwithstanding his knowledge, at the time of the sale, that the goods were intended to be smuggled into England. Lord Abinger said: "The distinction is, where he takes an actual part in the illegal adventure; as, in packing the goods in prohibited parcels or otherwise, there he must take the consequences of his own act." Again he says: "The plaintiff sold the goods; the defendant might smuggle them if he liked, or he might change his mind the next day; it does not at all import a contract of which the smuggling was an essential part.” In the same case Alderson, B., says: "If the plea disclosed circumstances from which it followed that, permitting the plaintiff to recover would be permitting him to receive the fruits of an illegal act, the argument for the defendant would be right; but that ground fails, because the mere sale to a party, although he may intend to commit an illegal act, is no breach of the law."

In Hodgson v. Temple, 5 Taunt. 181, the plaintiffs were distillers and sold the liquors to the defendants with full knowledge of their intention to retail them contrary to law. In an action to recover the price of the liquors, the defendants insisted that the plaintiffs' recovery was barred because they were particeps

criminis. But Mansfield, C. J., said: “This would be carrying the law much farther than it has ever yet been carried. The merely selling goods knowing that the buyer will make an illegal use of them is not sufficient to deprive the vendor of his just right of payment; but to effect that, it is necessary that the vendor should be a sharer in the illegal transaction."

The case of Lightfoot v. Tenant, 1 Bos. & Pul. 551, is relied upon by counsel for the plaintiff, here, as being diametrically opposed to the doctrine of these other English cases, and also to that of Cannan v. Bryce, 3 Barn. & Ald. 179; McKinnell v. Robinson, 3 Mees. & Wels. 434; Peck v. Briggs, 3 Denio, 107; and White v. Buss, 3 Cush. 448, and as sustaining the position that mere knowledge of the purchaser's intention to make an unlawful use of the goods is sufficient to make the vendor of such goods particeps criminis with the purchaser.

But Selden, J., in Tracy v. Talmadge, 14 N. Y. 173, contends, that when the precise ground upon which these cases were decided is considered, they will be found not in conflict with Faikney v. Reynous and Holman v. Johnson, but to support rather than to detract from the doctrine advanced in these cases. "That ground," he says, "is this, that it was the express object of the plaintiffs in these cases (Tenant v. Lightfoot, and others of that class), in selling the goods or lending the money, that they should be used for an unlawful purpose, and that such purpose entered into and formed a part of the contract of sale or loan." VA reference to Lightfoot v. Tenant confirms this view very clearly. The action was upon a bond given for goods sold. The defendant pleaded that the plaintiff sold the goods "in order that" they should be shipped without license, in violation of law. The issue being found for the defendant, upon a motion for judgment non obstante, Eyre, C. J., contended "that the jury having found that the plaintiff having sold the goods 'in order that' they should be shipped, etc., it cannot be said that he had no interest in their future destination; that he may be supposed to have sold the goods for an enhanced price, relying upon the profits to be realized from the illicit trade for payment." See his extended remarks, 1 Bos. and Pul. 555, 556. And he says again (p. 557): "The jury having found for the plea, the court cannot say that the plaintiff had nothing to do with the future destination of the goods, unless it was impossible to state a case in which they could have any thing to do with it."

A critical examination of this case must lead, we think, to the conclusion that it is decided upon the consideration that some advantage to the vendor from the future illegal use of the goods was an essential ingredient in the original contract of sale.

And with reference to Lightfoot v. Tenant, Cannan v. Bryce, M'Kinnel v. Robinson, Peck v. Briggs, White v. Buss, and a few others of kindred character, Comstock, J., in his opinion, delivered after a re-argument

of Tracy v. Talmage, says: "I group these cases together because they do not differ essentially in principle. Some of them sustain the position that, if the vendor of goods or the lender of money can be connected in intention with the illegal purpose to which the goods or money is to be applied, it is enough to defeat this action, although the unlawful use is not specified in the contract, and although he does no act in furtherance of the design beyond the sale or loan. But further than this they do not go.

"There is certainly room for a distinction between a case where the seller or lender simply knows of the illegal design, and one where he advances the money or the goods for the express purpose of enabling the other party to effectuate such design. For illustration: money may be lent in a gambling house, for the specific purpose of staking it on the result of a game; the law says it cannot be recovered. But suppose a broker or a banker lends money in his office, in the regular course of his business, knowing his customer to be a gambler by habit, and believing that he wants the loan for gaming purposes; if the illegal design does not enter at all into the negotiation of the contract, if it forms no part of the inducement to the transaction, will the knowledge or belief of the lender (and knowledge and belief, for the purposes of this question, are the same) prevent him from recovering the money when it is due? Such a doctrine, I apprehend, would be highly inconvenient in a commercial community. It would exact a more frequent scrutiny, on the part of dealers, into the habits and designs of others than the law requires any man to make." And so it was held, in Mc Gavock v. Puryear, 6 Coldw. (Tenn.) 34, that the mere knowledge, on the part of the lender of money, that the borrower intends making an illegal use of the money, is hot sufficient to fix the stain of illegality upon the transaction. To do this it must appear that the lender made the loan, on his part, to procure the doing of the illegal act.

Beach v. Kezar belongs to the same class of cases It was assumpsit for keeping oxen for the defendant at Canaan in the year 1813; one ground of defense was, that the cattle belonged to one Baily, who, from the commencement of the war till the time of the purchase, had resided in Canada, and been employed in procuring beef for the enemy's troops; that he had made Canaan a rendezvous for the cattle obtained in the United States, and, when opportunity offered, drove them across the lines; that the plaintiff knew all these circumstances, and kept the oxen with full information of their destination, and with an express view to facilitate their passage to the British troops. Woodbury, J., places the decision of the court, in favor of the defendant, most clearly upon the ground, not of the plaintiff's mere knowledge of the defendant's illegal intent, but that the plaintiff took an active part in the illegal transaction, and that the services performed in tending the cattle were furnished "with an

express design to facilitate their passage over the lines, by keeping them on the plaintiff's farm in the vicinity of the frontier till Baily could call for them with safety." The case furnishes no intimation of a similar result if the cattle had been kept at such a place and in such a way that nothing relating to their subsequent destination and disposition had entered into and become an inducement to and a part of the original contract for their support and keeping.

The case of the Commonwealth v. Harrington, 3 Pick. 26, to which the plaintiff's counsel has called our attention, is a case where the letting of a house of ill fame, with the intent of the lessor that it shall be used for purposes of prostitution, is holden to be an indictable offense. No question of contract is raised by the case, and it has no application here, other than such as all those cases have in which the actual intent and design of the party claiming for the price or hire of the thing sold or leased enters into the illegal | design and accomplishment of the lessee or purchaser.

In Bowry v. Bennett, 1 Camp. N. P. 348, where the action was brought to recover the price of clothes sold to the defendant, and the defense was, that the defendant was a woman of the town, that this was well known to the plaintiff, and that the clothes were purchased to enable the defendant to carry on the business of prostitution, Lord Ellenborough said: "It must be shown, not only that the plaintiff had notice, but that he expected to be paid from the profits of the defendant's prostitution, and that he sold the clothes to enable her to carry it on, so that he might appear to have done something in furtherance of it." See cases cited in note pp. 249, 250. See, also, Cheney v. Duke, 10 Gill. & Johns. 11, and Webster v. Munger, before cited.

I am aware of the comparatively recent case of Pearce v. Brooks, L. R., 1 Ex. 212, decided in 1866. In that case, the plaintiff had supplied a brougham to a prostitute; and it was held, on the authority of Cannan v. Bryce, that the knowledge that the woman was a prostitute being proven, the jury were authorized in inferring that the plaintiff also knew the purpose for which she wanted an ornamental brougham, and that this knowledge was sufficient to render the contract void. But Cannan v. Bryce is clearly distinguishable from this, and will not support the latter case; for, says Abbott, C. J., in Cannan v. Bryce, "It will be recollected that I am speaking of a case wherein the means were furnished, with a full knowledge of the object to which they were to be applied, and for the express purpose of accomplishing that object." Is there no valid distinction? In Cannan v. Bryce, the money was loaned for the purpose of enabling the party to engage in illegal stock-jobbing transactions. If the money had simply been loaned to a person who the lender knew was engaged in such transactions, and would probably use the money for such purposes, would the contract be invalid? Money loaned to a

gambler, for the purpose of being staked upon a pending game, cannot be recovered. Is it the same of money lent to one known to be a gambler, but concerning which loan and the unlawful game there is no other connection between the parties than that which results from a simple borrowing and lending of money?

So a sale of silks and jewels to a prostitute, if it be clearly shown that such sale was made for the express purpose of rendering her person attractive and seductive, and with the view of aiding her unlawful commerce, would be an illegal sale; but shall the seller of such merchandise be disabled from recovery merely because he knows the buyer to be a prostitute? Is such mere knowledge sufficient to render the contract void? We cannot believe that public policy requires the exercise of so much scrutiny into the designs of the purchaser, and the imposition of such restraints upon ordinary traffic, as the rule, so broadly stated in Pierce v. Brooks, would seem to imply; and directly contrary to such doctrine are the express decisions in Bowry v. Bennett, 1 Camp. 348, Appleton v. Campbell, 2 C. & P. 347, and Hodgson v. Temple, before cited. Moreover, we must not lose sight of the foreign element which distinguishes the present case from that of Pierce v. Brooks, and those upon which the latter is predicated; for, in so doing, we should become unmindful of the great principle controlling the very question at issue here, namely, the comity which affects the question of the validity of foreign contracts a principle which may very properly, in some cases, require the enforcement of a foreign contract, such as would not be regarded as valid if made by our own citizens at home, under a different policy from that prevailing in the place where the contract was made. Take the common, the invariable, practice of the recognition and enforcement by the courts of every State in the Union, of the laws of any and every other State concerning the rate of interest, as an example. Although a contract made in this State for the payment of eight or ten per cent interest for the loan of money would be regarded as usurious, unconscionable, corrupt, contrary to public policy and void, still our courts would not hesitate to enforce the same contract if made in Alabama, or Florida, or California. Bellows, J. Townsend v. Riley, 46 N. H. 310–313.

This court will and ought to be reluctant to enforce contracts manifestly against public policy; but where the public policy of the country is not uniform, but different in neighboring localities and variable in all, it would seem to be assuming rather too much to hold and insist that our own notions of public policy are and must be infallible, to the exclusion of the opinions and views of other enlightened communities, and the subversion of commercial comity.

A Louisville druggist has been assessed $100 damages by a jury, for making a mistake in putting up a prescription, in consequence of which a man was subjected to severe suffering.

The Scotch jury, as is well known, consists of fifteen members, and judgment goes according to the verdict of a certain majority. The system is preferable to our own in its freedom from the dilemma that must be often presented, of perjury on the one hand, and on the other an inability to concur in a verdict. According to the encomiasts of the English jury, and, indeed, according to the theory of the English law, it is on the "unanimous concurrence of twelve men" that we are to rely as strong evidence of a correct result; but this unanimity puts on a very different aspect and becomes far more insignificant when we remember the probability that an impatient minority may have yielded - as surely they have often donetheir consciences and their opinions to an equally impatient majority. Moreover, that twelve men. should concur in an opinion, is a strong argument in its favor only when that opinion is arrived at by persons having some considerable independence of thought and between whom there is a sufficient mental diver

sity to render it probable that the views of one are not a mere fac simile of the views of another. If there be any general uniformity of character in that class from which the jurors are drawn, we must not put their unanimity on a par in point of significance with the concurrent decision of twelve men, selected at hazard, whose training, modes of thought, feelings, and points of view are so varied, that their accordance in one result can hardly be accounted for except by the existence of powerful reasons in its favor. The difference is comparable to that between going over the steps of a calculation a second or third time, and checking the result by working from the beginning on a different method; and no school boy who is advanced in ciphering need be told which course affords the strongest presumption of accuracy.

The old process for arriving at the boasted unanimity, by subjecting the jurors to the slow torture of cold and hunger, having for some time fallen into disuse, is now, by the Jurors' act of 1870, directly discarded. It was about as sensible in principle as the more vigorous practice of the Polish Diet, whose recalcitrant members were hewn in two with a sword. But when coercion is abandoned, it seems to us that both the English and Scotch systems involve evils from which a trial by one or a greater number of judges is more free. The defect of the English jury is the liability to an irreconcilable difference of opinion, and a consequent inability to bring in any verdict- -a gratifying result, truly, to both parties, after a heavy outlay has been incurred in invoking the aid of law. The Scotch system involves the possibility of a verdict being hastily returned, without deliberation, as soon as it is found to possess the needful majority. One or more judges would be free from the besetting danger of an upright English jury, while

by the practice of stating the grounds of their decision, a barrier would be placed in the way of ill-considered judgments.

The defects on which we have commented it is, of course, the tendency of trial by jury to correct. The occupation of jurymen strengthens the habits and powers required, as most powers are strengthened by exercise. But there is certainly something objectionable in this method of practicing on the live subject. It must be a grim species of satisfaction to the corpus vile-the luckless plaintiff, or defendant, on whom an inexperienced or incompetent jury has passed an unreasonable decision to reflect that this is all excellent practice for them, and in time to come, some happy suitor may enjoy the benefit of the experience gained at his expense. Where experience can be acquired by no other means, we must accept the unfortunate necessity. But surely where it is feasible, drill should precede war, rehearsal should precede acting, and acquaintance with the courts as a listening and a practicing barrister should precede the exercise of judicial functions.

The objections to jury trial, however, are far from possessing the same weight in cases of murder, or the more heinous crimes, as in ordinary civil causes. A modern English jury will, no doubt, in such cases, earnestly endeavor to bring into the box careful and unprejudiced minds, will listen with patient attention to the comments of the bench, — to which, when they defer, they may be useless, but cannot be seriously detrimental, will be little subjected to the distracting rhetoric of the bar, at least on the part of the prosecution, and probably if they do err, will err on the side of mercy. If the sole alternative were a single judge, then to lay on one man the undivided responsibility, of decreeing away a life, were needlessly to impose a cruel burden. It can be no slight trial to the feelings of a humane man, to pronounce the summing up, which will seriously influence the momentous decision; it is hard to assume the black cap, and solemnly adjure the felon to seek from Heaven the mercy he must not hope from man; but the judge is at least free from the painful thought that his unsupported and fallible voice may haply have consigned the innocent to a disgraceful doom. And at the same time the public might not unreasonably think the opinion of a single individual, laboring (for aught that might be known) under temporary ill health that obscured his faculties, or private anxieties that embittered his disposition, an unsatisfactory ground for an irrevocable judgment. The same objections, however, would not apply, or in far less strong a degree, to a trial before several judges, uniting the guarantee of number to the advantages of legal training. If sentence only followed on the unanimous concurrence of three judges, their decision would certainly merit the sincere respect of the nation.

The independence of judgment which is shown by the readiness of the bench to express divergent