66

words of a law do not extend to an inconvenience rarely happening, and do to those which often happen, it is good reason not to strain the words further than they reach; but it is no reason, if the words do enough extend to an inconvenience seldom happening, that they should be restrained, because it happened not more frequently: 19 Vin. tit. Statutes, E. 6, pl. 69, 70. This last is precisely in point. Nothing can be more extensive than the words of the act of assembly. All lotteries whatever, whether public or private, are declared common nuisances, and penalties are imposed on any person who shall set up any lottery, play or device, by dice, lots, cards, balls, tickets, numbers or figures, or in any other manner or way whatsoever." Now, what was the mischief intended to be remedied? The preamble recites, that many mischievous and unlawful games, called lotteries, had been set up in the province, tending to the corruption of youth, and the ruin and impoverishment of poor families; this law was not made for the exclusive protection of minors and poor families; it was made to prevent the introduction of vice, idleness and immorality, in whatever shape they might flow from this contaminating source. It is of no consideration that the price of tickets was so high, that all but people of wealth above mediocrity were precluded from adventuring. We know from experience, that when a spirit of speculation, or desire of inordinate gain, infects the rich, it terminates in scenes of ruin and devastation, as wide spread and deplorable in their consequences of misery and want, in the domestic relations of life, as if it had been confined to those who had comparatively little to lose. Then, is not a lottery of this sort within the mischief intended to be prevented; and if it also be within the letter, on what principle can we say the act does not extend to it? We are bound to extend it to every case within the letter, which we can suppose, would, if foreseen, have been specially provided for; and will any one say the legislature, if it had foreseen the existence of these land lotteries, would have excepted them from the operation of the general provisions of the act. The preamble will not always serve as a guide to the construction of the purview, much less control it: Barker v. Reading, 1 Jones, 163; Palm. 485; The King v. Athos, 8 Mod. 144. The true rule seems to be, that where the not restraining the generality of the enacting clause will be attended with an inconvenience or particular mischief, it shall be restrained by the preamble, otherwise not; Ryall v. Rowles, 1 Ves. 365. No inconvenience or mischief can arise by declaring this transaction

AM. DEO. VOL. VIII-44

unlawful. It is said that the lots of many towns in the state have been disposed of in this manner, and that the security of many titles would be disturbed if the legality of the original transaction should called in question. But how a contract executed by a conveyance, and not fraudulent as to third persons, could be impeached on this ground, I am at a loss to discover.

The construction of English statutes before our revolution, and in pari materia with our acts of assembly, although not conclusive, is yet entitled to great weight in doubtful cases under the latter. The 10 and 11 William III., c. 17, is substantially the same as our act of 1729, the preamble of which is narrower than that of the act of 1762, now in force. The 8 George I, c. 2, sec. 39, was not founded on a supposition that sales of houses or lands by way of lottery, were not within the purview of the 10 and 11 William III. The preamble to that section declares that former prohibitions had been evaded, and the enacting clause increases the penalty, two thirds of which is given to the informer to encourage prosecutions for this offense. The inference attempted by the counsel therefore fails. The preamble of the 10 and 11 William III., states the grievance to be, that children and servants were defrauded; yet the purview, according to legislative interpretation, was not narrowed to exclude lotteries of the same character of that under consideration.

To prove the contemporaneous exposition of this act, the lottery for the sale of lands proposed by the proprietary in 1735, whilst the act of 1729 was in force, and the drawing for preference of location under the application system in 1769, are mentioned. The last was anything but a lottery. The proprietary received nothing for tickets; the seven shillings paid on each went to the officers of the land-office to defray the expenses; and no interest vested on the drawing, but only on the issuing of the location, which the proprietary might have withheld if he had thought proper. It was to ascertain whose pretensions should yield, where there was more than one application to become the purchaser of a particular spot, that the decision by lot was had recourse to, and nothing else was decided by it. The scheme of 1735 was, however, strictly a lottery. But the proprietary was in that capacity a quasi sovereign, being the executive of the colonial government, and it is not very clear that an act of assembly would extend to him unless he were particularly named. Would the statute of limitations, had it then existed, have run against him? He had a right under the charter to dispose of his land, which the legislature could not take away, and

whether they could modify it is a matter not free from doubt; at all events these considerations might readily induce him to suppose, and the people to acquiesce in it, that he was, for personal reasons, exempted from the provisions of the act of 1729. I am also of the opinion that the twenty-seventh section of the act of second of April, 1811, to incorporate the Union Canal Company, comprehends this case. It prohibits the sale of all tickets in lotteries not authorized by law. The object of the legislature was to direct the spirit of speculation that existed toward the lottery which that company was authorized to make, to aid in the undertaking in which they were engaged, and to suppress every other lottery. This view would be defeated if projects of this sort, so flattering to the cupidity of adventurers, were permitted to be brought in competition by individuals. I therefore concur in opinion that the judgment be reversed.

DUNCAN, J., also delivered an opinion in favor of reversing the judgment.

Judgment reversed.

ACTIONS ON ILLEGAL CONTRACTS.-The court say, in Thorne v. Travelers' Ins. Co., 80 Pa. St. 15: "It has often been held that an action founded on a transaction prohibited by statute cannot be maintained, although a penalty be imposed for violating the law, and it be not expressly declared that the contract be void: Mitchell v. Smith, 1 Binn. 118 [2 Am. Dec. 417]; Seidenbender v. Charles, 4 Serg. & Rawle, 151; Swan v. Scott, 11 Id. 155; Columbia Bridge Co. v. Haldeman, 7 Watts & Serg. 233; Thomas v. Brady, 10 Pa. St. 164; Scott v. Duffy, 2 Harris, 20; Holt v. Green, 73 Pa. St. 198.” The same doctrine is fully affirmed in Woods v. Armstrong, 54 Ala. 150; S. C., 25 Am. Rep. 671, where it is held, if a statute pronounces a penalty for an act, a contract founded on such act is void, although the statute does not in terms pronounce it void, nor expressly prohibit it. And such a contract is not made valid by a subsequent repeal of the statute.

The English decisions are fully in accord with these principles. In Drury v. Defontaine, 1 Taunt. 136, Lord Mansfield says: "If any act is forbidden under a penalty, a contract to do it is now held void." An action was brought for the value of bricks smaller than the dimensions laid down in the statute, which simply affixed a penalty for a violation. Lord Ellenborough said: "The first section of this statute absolutely forbids such bricks to be made for sale. Therefore the plaintiff, in making the bricks in question, was guilty of an absolute breach of the law, and he shall not be permitted to maintain an action for their value: Law v. Hodgson, 2 Campb. 147. In Brown v. Duncan, 10 B. & C. 93, an action was brought on a guaranty for sales of liquor, distilled without a license under a statute which affixed a penalty. It was held that these being mere revenue regulations, a breach did not render the trade so illegal as to prevent a recovery for sales. The case was distinguished from the brick case on the ground that this statute was de. signed only for the protection of the revenue, while that was to protect the public

But in Cope v. Rowlands, 2 M. & W. 157, this distinction was disre

garded, the court saying that it could make no difference in point of law, whether the statute which has made the act illegal, had in view the protection of the revenue or any other object. See Little v. Poole, 9 B. & Ad. 192, where the doctrine was applied to the sale of coals, the measure of which was not certified according to law; Tyson v. Thomas, M'C. & Y. 119, in reference to corn sold; Bensley v. Bignold, 5 B. & Ald. 335, in an action by a printer for work on which he failed to print his name according to statute. In Houstoun v. Mills, 1 M. & Rob. 325, it was held that a newspaper proprietor cannot recover for non-performance of a contract of printing such newspaper, before filing the affidavit in pursuance of a statute which in terms prohibits the printing without such filing.

Our own decisions also fully maintain this doctrine. Thus in Pennington ▼. Townsend, 7 Wend. 276, a statute made it unlawful for any unauthorized person to carry on banking, although it did not declare the securities void, yet it was held that a check discounted in violation of it gave no cause of action. In Griffith v. Wells, 3 Denio, 226, it was held an action could not be maintained for liquor sold by a person without a license, although the act did not prohibit such sale, nor declare it illegal, but inflicted a penalty for its violation. That an act in violation of the revenue laws simply may give rise to a cause of action, was acknowledged in Ferdon v. Cunningham, 20 How. Pr. 154.

It was held in Bank of U. S. v. Owens, 2 Peters, 527, under a statute forbidding the taking of more than a certain rate of interest, but not declaring securities reserving a greater rate void, that such securities were void on general principles.

The rule of law is of universal operation, that none shall, by the aid of a court of justice, obtain the fruits of an illegal contract: Russell v. De Grand, 15 Mass. 35. Instances of the application of the doctrine appear where a contract was held void, the consideration being certain bills prohibited by statute: Madison v. Ins. Co., 2 Ind. 483. In the case of a usurious contract, although not declared void by the statute; in the case of a mortgage for liquors illegally sold: Ellsworth v. Mitchell, 31 Me. 247; in the case of a contract concerning lottery tickets: Roby v. West, 4 N. H. 285; in the case of a note for cider illegally sold: Nourse v. Pope, 15 Allen, 87; in the sale of the office of deputy sheriff: Carlton v. Whitcher, 6 N. H. 196; in the sale of hay not legally branded: Brackett v. Hoyt, 29 N. H. 264; a contract in restraint of bidding: Hale v. Henderson, 4 Humph. 199; in an action for wages by an unlicensed steamboat engineer: Deady, 72; in an agreement for carriage of liquors: Territt v. Bartlett, 21 Vt. 184.

If there be no prohibition of an act, but a simple penalty affixed; and if it be not contra bonos mores, a contract founded on it has been held valid: Solomon v. Dreschler, 4 Minn. 278. So unlicensed dealings in bills of exchange, not being expressly prohibited, although punishable, contracts for their sale and purchase are legal: Lindsey v. Rutherford, 17 B. Mon. 245. And under a statute merely prescribing that a cord of wood shall be of certain dimensions, a contract for the sale of wood less than a certain length is not void: Coombs v. Emery, 14 Me. 404.

The public benefit is particularly in view, and not so much an individual advantage when a contract is declared void, founded on an act subject to a penalty: Bibb v. Miller, 11 Bush, 309; Scotten v. State, 51 Ind. 52. So, where a law provided that eight hours should be a lawful day's work; and that a stipulation to that effect should be inserted in all public contracts, an omission to insert this provision in a public contract was held not to vitiate

it, the statute not declaring that the omission should have such effect: Babcock v. Goodrich, 47 Cal. 509.

Where a contract in violation of a statute is void, the repeal of the statute does not render it valid: Banchor v. Mansel, 47 Me. 58; Milne v. Huber, 3 McLean, 212; Woods v. Armstrong, 54 Ala. 450; Gilliland v. Phillips, 1 S. C. 152. But it is otherwise if the contract is not immoral: Central Bank v. Empire Stone Co., 26 Barb. 23; Curtis v. Leavitt, 15 N. Y. 85.

BROWN V. Furer.

[4 SERGEANT & RAWLE, 213.]

LEGACY CHARGED ON LAND, ACTION FOR.-No joint action can be maintained against a devisee and terre-tenants of land, to recover a legacy charged thereon, without an express promise to pay it.

ERROR to the common pleas. The opinion states the case. Elder and Hopkins, for the plaintiff in error.

Godwin and Duncan, for the defendant in error.

By Court, TILGHMAN, C. J. Daniel Brown, deceased, devised a tract of land of which he died seised to his son, John Brown, one of the defendants, in fee, charged with a legacy of one hundred pounds bequeathed by the testator to his wife Agnes, who died without having received the said legacy, having made her last will and testament, and constituted Agnes Furer, the plaintiff, the executrix thereof. John Brown, after the death of his father, Daniel, entered into the land devised to him, and conveyed the same to Peter Ebersole, deceased. Peter Ebersole died seised of the said land, leaving Elizabeth Ebersole (married to Michael Cassel, one of the defendants), John Ebersole, Christina Ebersole (married to one John Smith, another of the defendants), Barbara Ebersole and Catherine Ebersole, his children and heirs, and Barbara Ebersole, his widow, all of whom, after the death of the said Peter Ebersole, entered into the said tract of land and became seised thereof. This action was brought for the recovery of the said legacy of one hundred pounds by Agnes Furer, the executrix and residuary legatee of Agnes Brown, against John Brown, the devisee of the said land, and the widow and children of Peter Ebersole, who purchased it of the said John Brown, in the court of common pleas of Dauphin county, and judgment was rendered for the plaintiff against all the defendants jointly. This judgment may be executed not only on the land charged with the legacy, but operates equally and personally on all the defendants. Their property of every kind may be levied on; their bodies may be