Hall v. Costello

Nesmith, J. The facts found in this case clearly evince that a contract was made by the parties in this State, to be performed in Canada. The general rule is that the contract, in respect to its construction and force, is to be governed by the law of the country or State in which it is to be executed. Lord Mansfield, in Robinson v. Bland, 2 Burrows 1077; Story’s Conflict of Laws, 233, 234; 2 Kent’s Com. 459; Blanchard v. Russell, 13 Mass. 4; 2 Met. 398; Mather v. Bush. 16 Johns. 233. It is also a general rule, applicable to contracts, that no people are bound to enforce or hold valid in their courts of justice, any contract which is injurious to their public rights, or offends their morals, contravenes their general policy, or violates a public law. Story’s Conflict of Laws, 203, 215. Whatever constitutes a good defence by the law of the place where the contract is made oris to be performed, is equally good in every other place where the question is litigated. 2 Kent 459. The plaintiff advanced his money to the defendant in this State, as well as in Canada, for the manifest purpose of carrying into effect a contract, the direct tendency of which was to violate a public law of that country. The contract must be, therefore, treated as void, and the money paid under it cannot be recovered back. In Smith v. Bromley, Dunlop Pep. 695, note, Lord Mansfield says : "If the act is itself immoral, or a violation of the general laws of public policy, then the party paying shall not have this action to recover back the money; for where both parties are equally criminal against such general laws, the rule is "potior est conditio defendentis.” 1 Story’s Equity, secs. 296 and 298. In note to sec. 298, the authorities at law and in equity are collected. Cutler v. Welch, 43 N. H. 498; Lewis v. Welch, 14 N. H. 294 White v. Hunter, 23 N. H. 128. Brackett v. Hoyt, 29 N. H. 264; DeGrout v. Van Deuzen, 20 Wend. 390. The plaintiff objects to the mode in which the foreign law of Canada was proved in this case. In proof of the laws of a foreign country, the testimony of any person, whether a professed lawyer or not, who appears to the court to be well informed on the point, is competent. Pickard v. Bailey, 26 N. H. 152, and authorities cited. Foreign laws are to be proved as facts by evidence addressed to the court, and not to the jury. Ibid. 1 Peere Williams, 431; 2 Crunch 236; Thompson v. Ketchum, 8 Johns.; Francis v. Ocean Ins. Co., 6 Cow. 429, and note; Lincoln v. Battelle, 6 Wend. 475; Dollfus v. Frosch, 1 Denio 367; Munroe v. Douglas, (5 N. Y.) 1 Selden 447; Story on Conflict of Laws, 528. The general principle, that the best testimony or proof shall be required, which the nature of the thing admits of, applies to the proof of foreign laws as well as to other facts. Story, 528-9. In this case, the testimony of respectable attorneys in this State was received who had a direct interest to investigate this precise question in Canada, and who had their information from authentic and well informed sources. The foreign statute law prohibiting the enlistment of soldiers in Canada, or within the jurisdiction of Great Britain, to be employed in such service here, and imposing high penalties upon such as might [180] offend against the same, was pointed out, or furnished to the witnesses by those who were practising daily under the law, and had the best means of becoming fully acquainted with its provisions and all the law applicable to this class of offences, and had no occasion to misrepresent. Hence, we are inclined to believe that the law prohibiting the contract of the parties in this instance was properly proved and authenticated by competent testimony; and that the plaintiff cannot maintain this action to recover any part of his advancements. The counsel for plaintiff abandons the payment made to defendant in Canada. As to the other sum, advanced here, the true test to be applied in order to determine whether plaintiff can collect it is, whether the plaintiff requires any aid from the illegal transaction to establish his case. Simpson v. Bloss, 7 Taunt. 246; Callagher v. Hallet, 1 Caines 104. We do not feel called upon to decide whether the plaintiff’s or defendant’s statement of the contract was in every respect the most correct in point of fact, but under all the circumstances, it appears to us impossible so to separate and apply the testimony in the case as to leave the plaintiff an innocent party. Under the agreement, he was to profit by the defendant’s services. The journey to Canada was made, and the money was advanced, with a view of procuring to himself further prospective illegal gain through the enlistment of men to be obtained in Canada, and to be aided throughout by the influence and experience of the defendant. There must be Judgment for defendant.