Hathaway v. Moran

Hathaway, J. The twenty gallons of gin, for which the plaintiff claims to recover, was sold in violation of a public statute. The general rule is, that what is done in contravention of a statute cannot be made the subject matter of an action. Laughton et als. v. Hughes et al., 1 Mau. & Sel. R., 593; Wheeler v. Russell, 17 Mass. R., 258. The rule applies to contracts founded on a transaction prohibited by statute on the ground of public policy, as well as those founded on a transaction malum in se. Warren v. Man. Ins. Co., 13 — 72 — Pick. R., 518; Russell v. DeGrand, 15 Mass. R., 35, and Rand’s notes. The subsequent repeal of the statute of 1855 can have no effect upon a contract made while it was in force; “ as well might a contract, made for the purpose of trade with an enemy, during a war, be purged of its illegality by the return of peace; ” per Parker, C. J., in Springfield Bank v. Merrick et al., 14 Mass. R., 322. And beside, the plaintiff’s action was commenced March 5, 1856, as appears by the date of his writ, at which time the statute of 1855 was in force, not having been repealed until April, 1856. The plaintiff cannot recover pay for the gin, and, as agreed by the parties, the decision of the judge who presided at, Nisi Prius is affirmed, and judgment to be rendered accordingly.