ers.

Statement of case.

upon the trial that the goods were sent through the custom-house at a valuation less than the stipulated price, the invoices accompanying them being made out at the market price on the day the goods were shipped from Z., while invoices at the stipulated price were given to the purchasThe original defendants did not interpose this defense. Plaintiffs' counsel requested the court to direct a verdict against the original defendants with a proviso that plaintiffs should have no remedy as against the funds in the hands of the receiver. This was refused and a verdict directed for all the defendants. Held, error; that conceding a violation of the revenue laws was proved, as to which quære, the original defendants were not entitled to avail themselves of such a defense, as they had not pleaded it.

It seems that when it appears, in an action to recover for goods sold, by plaintiff's own proof, or upon a defense properly interposed, that the goods were bought and sold for the purpose of being introduced into the country in violation of its revenue laws, and that the vendor shared in the illegal transaction or assisted in defrauding the customs, plaintiff may not recover; but unless it appears upon plaintiff's own showing or is pleaded as a defense, defendant is not entitled to the benefit of it as such.

O., one of said firm, was called as a witness for the receiver; his testimony was not directly contradicted. The court refused to submit the ques tion of his credibility to the jury. Held error, that as he was an interested witness the question was for the jury.

The order allowing the receiver to come in and defend was granted upon his petition, in which he averred collusion between plaintiffs and one or more of the defendants, but only on information and belief, without stating any facts, or sources of information upon which the belief was based. This averment was positively denied by plaintiffs. Held, that the petition was insufficient to support the order and the same was improperly granted.

Also held, that the receiver had no such interest in the action as authorized him to intervene.

Also held that the order was reviewable here. (Code of Civil Procedure, § 1316.)

Honnegger et al. v. Wettstein et al. (15 J. & S. 125) reversed.

(Argued December 3, 1883; decided December 14, 1883.)

APPEAL from judgment of the General Term of the Superior Court of the city of New York, entered upon an order made March 8, 1882, which affirmed a judgment in favor of defendants, entered upon a verdict, and also affirmed an order of Special Term, making Feodore Mierson, as receiver of the assets of the firm of Wettstein, Oehninger & Co., a party de

Statement of case.

fendant, and giving him leave to appear and defend. (Reported below, 15 J. & S. 125.)

The nature of the action and the material facts are stated in the opinion.

D. M. Porter for appellants. It was not illegal for plaintiffs to take the risks of the consignment. (Brooks v. Avery, 4 Comst. 225.) If the indebtedness of the defendants' firm had not been reduced below 50,000 francs at any time, the goods would still continue the property of the plaintiffs. (Converseville Co. v. Chambersburg Co., 14 Hun, 609; Walker v. Buttrick, 105 Mass. 237.) The custom laws are malum prohibitum, and not malum in se, and have no extra-territorial force, and the plaintiffs were not bound to know their provisions. (Charles v. People, 1 Comst. 180; King v. Doolittle, 1 Head [Tenn.], 77; Arms v. Dauchy, 82 N. Y. 443.) The defendants waived the alleged illegality in the transactions, if any there were, and affirmed the transactions, and the receiver being a third party, cannot object. (Merritt v. Millard, 4 Keyes, 308; Pepper v. Haight, 20 Barb. 429.) The receiver cannot retain any of the proceeds of the property consigned on account of any illegality, because he is a mere agent. (Parkersburg v. Brown, 16 Otto, 487; Murray v. Vanderbilt, 39 Barb. 140; Bonsfield v. Wilson, 16 M. & W. 184, 185; Pratt v. Short, 79 N. Y. 437; Pratt v. Eaton, id. 449; Dickinson v. Gilliland, 1 Cowen, 481; Acker v. Ledyard, 8 Barb. 514-518; Arden v. Patterson, 5 Johns. Ch. 44, 52; Simson v. Hart, 11 Johns. 63; In re Negus, 10 Wend. 33, 34, 41.) The defendants Wettstein and Meyer have not alleged any defense of fraudulent importations, and consequently plaintiffs are entitled to recover against them. (O'Tool v. Garvin, 1 Hun, 92; Brennan v. The Mayor, etc., 62 N. Y. 365 ; Paige v. Willet, 38 id. 28; Potter v. Smith, 70 id. 299; McFerran v. Taylor, 3 Cranch, 270; Akin v. Albany M. R. Co., 14 How. 337; Sawyer v. Chambers, 11 Abb. Pr. 110, 112; Webster v. Bond, 9 Hun, 437; Judd v. Young, 7 How. Pr. 71; Chandler v. Powers, 25 Hun, 445; Hornby v. Gordon, 9 Bosw. 656, 658-9.) Third persons should not be permitted to intervene and be made par

Statement of case.

ties to a pending suit upon their own application, unless their presence is necessary for an entire adjudication of the questions between the original parties, and then only in equity. (Kel sey v. Murray, 18 Abb. Pr. 294; Davis v. Mayor, etc., 14 N. Y. 506, 526, 527-8; Tallman v. Hollister, 19 How. Pr. 508; Judd v. Young, 7 id. 79; Ruger v. Heckel, 85 N. Y. 483, 484; N. Y. S. S. M. P. A. v. Remington, 89 id. 22; Code of Civil Procedure, § 452.) The defendant Mierson certainly was entitled to nothing more than to protect the fund in his hands. (Bostwick v. Menck, 40 N. Y. 383.) The law will not presume an agreement void as illegal or against public policy when it is capable of a construction which would make it consistent with the law, and valid. (Curtis v. Gokey, 68 N. Y. 300, 304; Bigelow v. Benedict, 70 id. 203, 204, 205; Ormes v. Dauchy, 82 id. 443; Thrall v. Newell, 19 Vt. 202; Shultz v. Hoagland, 85 N. Y. 464; Tracy v. Talmage, 14 id. 162; Lowell v. B. & L. R. R. Co., 23 Pick. 24; Inhabitants of Worcester v. Eaton, 11 Mass. 368; People v. Courtney, 28 Hun, 589; Gildersleeve v. Loudon, 73 N. Y. 609; McNulty v. Hurd, 86 id. 547; Kavanagh v. Wilson, 70 id. 177.) The question as to whether the receiver was properly before the court, and the mode and substance of the trial, are properly reviewable on an appeal from the judgment. (Kellum et al. v. Durfoo et al., 78 N. Y. 484.) The alleged release of Oehninger was simply introduced to establish the sum due the plaintiffs, and cannot be used for any other purpose. (Woodcock v. Roberts, 66 Barb. 498, 501.) It was ineffectual in any case. (Harrison v. Close, 2 Johns. 448; Hoffman v. Dunlop, 1 Barb. 186; Fellows v. Stevens, 24 Wend. 294, 298-9.) The order allowing the receiver to intervene is an intermediate order, and was specified in the notice of appeal, and necessarily affects the final judgment, and is reviewable hereunder. (Code of Civil Procedure, § 1316; Kellum v. Durfoo, 78 N. Y. 484; Kilmer v. Hathorn, id. 228; Kelly v. Sheehan, 76 id. 325; Meriden Malleable Iron Co. v. Bandman, 2 Weekly Dig. 591; Dryfus v. Otis, 54 How. 409; McHenry v. Jewett, 90 N. Y. 58; Jordan v. N. S. and L. B'k, 74 id. 467.)

Statement of case.

Lucien Birdseye for respondents Wettstein and Meyer. Where a contract, whether express or implied, is forbidden by law, whether expressly or by implication, and whether by the common or statute law, no court, whether at law or in equity, will lend its assistance to give it effect. (Nellis v. Clark, 20 Wend. 24; 4 Hill, 424; Chamberlain v. Barnes, 26 Barb. 160; Freelove v. Cole, 41 id. 318, 325; Porter v. Havens, 37 id. 343; Hall v. Erwin, 60 id. 349; Moseley v. Moseley, 15 N. Y. 335; Starin v. Kelly, 36 N. Y. Supr. Ct. 366, 370; Smith v. Hubbs, 1 Fairf. 71.) Contracts for the sale of goods are illegal where the goods were bought and sold for the express purpose of being introduced into the country by violations of its revenue laws, and the vendor is either a sharer in the illegal transaction or assisted in defrauding the customs. (Holman v. Johnson, Cowp. 341; Biggs v. Lawrence, 3 D. & E. 454; Clugas v. Penaluma, 4 id. 466; Wamell v. Reed, 5 id. 599; Lightfoot v. Tenant, 1 B. & P. 551; Hodgson v. Temple, 5 Taunt. 181; 1 Eng. C. L. 67; Morck v. Abel, 3 B. & P. 35; Van Dyke v. Hewitt, 1 East, 96; Lowrey v. Bourdien, Douglass, 468; Armstrong v. Armstrong, 3 My. & K. 45, 64; 8 Eng. Ch. 269, 279; Pearce v. Brooks, L. R., 1 Ex. 213, 218; Cowan v. Milburn, L. R., 2 Ex. 230; The Reward, 2 Dods. Adm. R. 271; Simpson v. Bloss, 7 Taunt. 246; 2 E. C. L. 69; Fivaz v. Nichols, 2 M. Gr. & S. 52; E. C. L. 501; Hannay v. Eve, 3 Cranch, 242; Armstrong v. Toler, 1 Wheat. 258; Duncanson v. McLure, 4 Dallas, 306; Belding v. Pitkin, 2 Cai. 147, 149; Woodworth v. James, 2 Johns. Cas. 417; Whittaker v. Cone, id. 58; Hunt v. Knickerbocker, 5 Johns. 327; Graves v. Delaplane, 14 id. 146; Griswold v. Waddington, 15 id. 57; 16 id. 438; Patton v. Nicholson, 3 Wheat204, 207, note; Richardson v. Maine Ins. Co., 6 Mass. 102, 111; Russell v. DeGrand, 15 id. 35; Wheeler v. Russell, 17 id. 258; Mosely v. Mosely, 15 N. Y. 334; Niver v. Best, 10 Barb. 369; Merrick v. Butler, 2 Lans. 103; Steuben Co. B'k v. Matthewson, 5 Hill, 249; Daimouth v. Bennett, 15 Barb. 541; Barton v. P. J. & U. F. P. R. Co., 17 id. 397; Rose v. Truax, 21 id. 361; Bell v. Leggett, 7 N. Y. 176; Coppell v.

Opinion of the Court, per MILLER, J.

Hall, 7 Wall. 542, 558; Oscanyan v. Arms Co., 13 Otto, 261, 268-9; Drexler v. Tyrrell, 15 Nev. 114, 131-140.) If these defendants either knew of the crime, and were participants in it and its fruits, or had just reason to suspect it, and were will ing to take their part in its gains, still plaintiffs cannot sustain their action. (Dwelly v. Van Houghton, 4 N. Y. Leg. Obs. 101, 103-4; Merritt v. Millard, 3 Abb. App. Dec. 291; 4 Keyes, 213; Kerrison v. Kerrison, 8 Abb. N. C. 449; Tracy v. Talmadge, 14 N. Y. 162; Pepper v. Haight, 20 Barb. 438; Westfall v. Jones, 23 id. 9; Schermerhorn v. Talman, 14 N. Y. 93, 141; Solinger v. Earle, 82 id. 393, 397; Knowlton v. C. & E. Spring Co., 57 id. 518, 533.)

John Hallock Drake for respondent Mierson, receiver, etc. This appeal does not bring up for review here the order permitting the receiver to make and serve an answer. (Code of Civil Procedure, § 1316; Barrera v. Entensa, 13 Pittsb. S. J. 341.) A contract founded upon an unlawful act, whether it be malum prohibitum or malum in se, cannot be enforced by action. (Smith v. City of Albany, 7 Lans. 4; Bell v. Quinn, 2 Sandf. 146; Hamilton v. Gridley, 2 Alb. L. J. 458; 54 Barb. 542; Graves v. Delaplaine, 14 Johns. 146.)

MILLER, J. This action was brought by the plaintiffs, to recover a balance of $19,492.91 for goods sold and delivered, consigned or caused to be consigned, and for commissions and moneys paid out.

The plaintiffs are residents of Zurich in Switzerland, and in October, 1875, the firm of Wettstein, Oehninger & Co., of the city of New York, ordered goods to be manufactured for them by the plaintiffs, at the price of the material at the time of the order and the cost of manufacturing them. Before the goods were manufactured and shipped, goods of that kind had declined in price in the market of Zurich, from ten to fifteen per cent, and, in consequence of some doubt as to the responsibility of the defendants, the plaintiffs refused to deliver the goods so directed to be manufactured, but stated they would SICKELS-VOL. XLIX. 33