Young v. Stevens.

alleged by plaintiff's counsel, then what will be the legal result? In such case Greenleaf says: "The executed contract of a person, alleged to be non compos, is to be regarded very much like that of an infant, and that, therefore, where goods have been supplied to a party, which were necessaries, or were suitable to his or her station or employment in life, and which were furnished under circumstances evincing that no advantage of his or her mental infirmity was attempted to be taken, and which have been enjoyed by such party, then he or she is liable in law as well as in equity for the value of the goods." 2 Greenl. Ev. 369, and cases in notes; 3 Carr. & Payne, 30; 2 id. 178; Chitty on Con. 108; Story on Con. §§ 23, 24; Kendall v. May, 10 Allen, 62. The latter case in Massachusetts shows what may be regarded as necessaries for a wealthy insane person, and is interesting in some of its illustrations. In McCrillis v. Bartlett, 8 N. H. 569, it has been settled, that, although the statute may avoid the contracts of spendthrifts for their protection, yet, at the same time, it does not avoid their implied contracts or liabilities for necessaries. In this case, the defendant had furnished his own personal services and pecuniary aid to the spendthrift to resist the appointment of a guardian over him, upon probable grounds of success. The court held that such money and aid might be considered as necessaries, as the spendthrift might resist the appointment of a guardian.

From the aforesaid legal authorities there is no doubt that the defendant is entitled to claim under his written contract compensation for any and all actual benefits rendered to the testatrix or her estate, using the term necessaries in its liberal sense. And on a fair construction of the case before us, and a review of the authorities bearing on this subject, we come to the conclusion that there is nothing stated in plaintiff's case indicative of any want of good faith on the part of the defendant; nothing tending to show that he has practiced any fraud, artifice, or imposition upon plaintiff's testatrix, in procuring the contract. There is nothing to show that defendant had knowledge of any mental imbecility of the testatrix, provided she actually had such infirmity, and it therefore seems to us, that, so far as relates to the inception of the written contract and the things done under it, the plaintiff cannot sustain this action, and that the nonsuit must stand. As to any claim outside of the written contract, including board and provisions, the plaintiff can proceed for whatever may be due.

Hall v. Costello.

HALL V. COSTELLO.

(48 N. H. 176.)

Contracts tending to violate laws of foreign country-Proof of foreign laws.

Plaintiff and defendant, in pursuance of an agreement to that effect, went to Canada in 1864 for the purpose of procuring men to be enlisted in the United States army, and before going, and also while there, plaintiff loaned to defendant money to pay his expenses. In an action to recover such money, held, that the contract, having for its object the violation of a law of Canada, was void, and that the plaintiff could not recover.

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 this point, is competent.

THIS was an action of assumpsit to recover money had and received.

The plaintiff and defendant, both residents of New Hampshire, made an agreement in 1864 whereby they were to go, and did go, to Canada for the purpose of procuring men for enlistment into the United States army. The profits of the enterprise were to be divided between them. Before leaving New Hampshire, and also while in Canada engaged in the business, the plaintiff loaned the amount involved to defendant toward paying his expenses. Both parties returned home without bringing any men, and plaintiff brings this action to recover the money loaned. It appeared that they knew at the time that procuring men in Canada to enlist in the United States was a violation of the laws of Canada.

To prove the statutes and laws of Canada prohibiting enlisting men for the United States army, two respectable attorneys of New Hampshire were sworn, who testified that, having occasion theretofore to examine the said laws on the subject, they had applied to prominent lawyers of the dominion who were familiar with the law, and that they showed them and explained to them the laws on the subject, and gave them the copies produced as evidence. The case was reserved for this court.

Whidden & Heywood, for plaintiff.

Bingham, Burns & Fletcher, for defendant.

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 Burr. 1077; Story on Con. of L. 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 on Con. of L. 203, 215. Whatever constitutes a good defense by the law of the place where the contract is made, or is 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, 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 Eq., §§ 296, 298. In note to section 298 the authorities at law and in equity are collected. Cutler v. Welch, 43 N. H. 498; Lewis v. Welch, 14 id. 294; White v. Hunter, 23 id. 128; Brackett v. Hoyt, 29 id. 264; De Grout 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 cuntry, the testimony of any person, whether a professed lawyer or not, who appears to the court to be well informed on the subject, is competent. Pickard v. Bailey, 26 N. H. 152, and authorities cited.*

*In the earlier cases it was held that written foreign laws could only be proved by copies thereof properly authenticated. Church v. Hubbard, 2 Cranch, 187; Packard v. Hill, 2 Wend. 211; Chanoine v. Fowler, 3 id. 173. In Evans v. Smith, 14 How. (U. S.) 400, statute books containing foreign laws, proved to have been published by the authority of the government which made the law, were admitted. In Kenny v. Clarkson, 1 Johns. 385, and in Lincoln v. Battelle, 6 Wend. 475, it was held that foreign aws could not be proved by parol. In Jones v. Moffit, 5 Serg. and Rawle, 523, a copy of

Hall v. Costello.

Foreign laws are to be proved as facts by evidence addressed to the court, and not to the jury. Id.; 1 P. Wms. 431; 2 Cranch, 236; Thompson v. Ketchum, 8 Johns.; Francis v. Ocean Ins. Co., 6 Cow. 129, and note; Lincoln v. Battelle, 6 Wend. 475; Dollfus v. Frosch, 1 Den. 367; Munroe v. Douglas, 1 Seld. (5 N. Y.) 447; Story on Con. of L. 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, 529.

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 offend against the same, was pointed ont, or furnished to the witnesses, by those who were practicing 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 offenses, 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.

an Irish stati te, sworn to by an Irish barrister as correct, and as having been received by him from the king's printer, was admitted. In the following cases parol evidence of foreign written laws has been held admissible. Sussex Peerage Case, 11 Clark and Fin. 85; Bode's Case, 8 Ad. and El. (N. S.) 208; Vanderdonck v. Thellusson, 8 Man. Grang, and Scott, 812 (in this case the witness was not a lawyer); Burrows ▼. Downs, Sup. Ct. of R. 1. to appear in next volume of R. I. reports.-REP.

VOL. II.-27.

Gault v. Brown.

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.

GAULT V. Brown.

(48 N. H. 183.)

Contract-Entirety — Not to be performed within a year— Statute of frauds

On the 1st of January plaintiff made a parol contract with defendant to sell him all the wood upon a certain lot, at five dollars a cord, and to deliver as much thereof as he could that winter, and the balance the winter and year following, the defendant to pay on demand for amount delivered at the close of each winter's delivery. Plaintiff delivered a portion of the wood that winter, which was accepted and paid for; the remainder he delivered the winter and spring following, but defendant refused to accept or pay for it. Held, that the contract was entire; that the delivery and acceptance of the first part took the case out of the statute of frauds; and that it was not a contract which was not to be performed within one year from the making of it, within the meaning of the statute.

THIS was an action of assumpsit for goods sold and delivered.

The plaintiffs, on the first day of January, 1865, made a parol contract with the defendant to sell him, at five dollars a cord, all the wood that was then cut and being upon a certain lot of land, containing somewhat over seven hundred cords by estimation, and to deliver at a certain place designated, as much thereof as they could during the then present winter, and the balance thereof during the next following winter and year. The defendant agreed to pay, as often as every one hundred cords were delivered, money enough to pay for drawing; and that when plaintiff's had delivered all that they could during that winter, defendant was to pay on demand the balance due for the part delivered; and when the whole was delivered, he was to pay on demand the amount due.

The plaintiffs delivered that winter three hundred and seventy-four cords, which was accepted and paid for. The remainder was delivered during the winter and spring of 1865 and 1866, but was not