others, may be registered." Section 4347 enacts "that no merchandise shall be transported, under penalty of forfeiture thereof, from one port of the United States to another port of the United States, in a vessel belonging wholly or in part to a subject of any foreign power; but this section shall not be construed to prohibit the sailing of any foreign vessel from one to another port of the United States: provided, that no merchandise other than that imported in such vessel from some foreign port shall be carried from one port or place to another in the United States."

It has been suggested that the island of Roncados is not a port, and therefore does not come within the penalty imposed. I do not know whether the island contains any "haven" or "place where vessels may safely ride at anchor." It is certain that it has no port of entry. But the word "port" in the section evidently means any place from which merchandise may be shipped. Such is the statutory construction given to the word in Rev. St. § 2767, and in section 4347 it is used as an alternative word for "place." Any other construction of the word would defeat the evident intent of the statute, besides putting a narrow and forced interpretation upon it. But whatever might be said upon this point is unnecessary. The penalty imposed is only evidence that the act of shipping in a foreign bottom is for bidden. The fact that the statute forbids such act, and not the penalty imposed, makes the contract illegal. That the statute of the United States does forbid it is evident.

The conclusion reached, then, is this: The contract to carry the guano from Roncados to Wilmington, two places in the United States, in a foreign vessel, entered into between the master of the Iolanthe and the defendant Jarnette, was illegal; and, being illegal, no freight was earned by the Iolanthe. It is not deemed necessary to multiply authorities in support of a proposition so well understood. The general rule is laid down by HOLT, C. J.:

"Every contract made for or about any matter or thing which is prohibited and made unlawful by statute is a void contract, though the statute does not mention that it shall be so, but only inflicts a penalty on the offender; because the penalty implies a prohibition." Bartlett v. Venor, Carth. 252.

In Smith v. Mawhood, 14 Mees. & W. 452, PARKE, B., says that if the legislature intend to prohibit any contract, the contract will be illegal and void.

"The universal law of illegal contracts, which declares them void, and permits no valid claim to grow out of them or rest upon them, applies to the contract for freight. It follows that no freight can be earned by an illegal voyage.' 1 Pars. Marit. Law, 225. The court of king's bench gives the definition of freight:

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"Freight is the reward which the law entitles a plaintiff to recover for bringing goods lawfully into the country upon a legal voyage.” Muller v. Gernon, 3 Taunt. 394.

Conceding the general rule, and making no controversy over the illegality of the voyage, or the proposition that it was within section

4347 of the Revised Statutes, the learned counsel who appeared for the petitioner on the rehearing, contended that the court should allow the petitioner his freight for two reasons: First, because the government had remitted the forfeiture; and, second, because this is a cause in equity, and a court of equity will not give the plaintiff the cargo, and deprive the petitioner of his possession and common-law lien, without compelling the former to do equity, by paying the charges for freight.

The only evidence offered on the first point is a letter from the assistant secretary of the treasury, reciting a telegram of the thirty-first of March, ult., by which the collector at Wilmington is directed to “allow British schoner Iolanthe to make entry as from a foreign port, abstain from exacting penal tax, and abandon proceedings for forfeiture of cargo." This does not amount to or profess to be a remission of the forfeiture. The mode of remitting such a forfeiture is prescribed in section 5292 of the Revised Statutes, which requires a petition to the district judge, a summary inquiry by him into the circumstances, and a transmission of the facts to the secretary of the treasury. But no remission of the forfeiture would have the effect of legalizing the illegal contract. No freight was earned by the Iolanthe; and no pardon or waiver of the penalty incurred, by way of penal tax (Rev. St. § 4219) or forfeiture, can make that good which was void in its inception. If authority were needed on the point, the cases of Muller v. Gernon 3 Taunt. 394, and Blanck v. Solly, 8 Taunt. 89, are in point.

The proposition that the forfeiture was only for the government, and if that be waived the parties to the contract cannot make the defense, is unsound in putting the case upon the forfeiture, which is but an indication or proof that the act was forbidden. The contract to ship in a foreign bottom was to do a thing forbidden by law. The penal tax and forfeiture are imposed as penalties for the illegality; but it is not the penalty, but the illegality, which makes the contract void, and a remission of the punishment cannot affect the contract which is made void by the law itself.

Upon the second point: the penalties against which equity relieves are those existing by contract, not those, like the one in controversy, created by law. The latter, no court can relieve against. "Where any penalty or forfeiture is imposed by statute upon the doing or omission of a certain act, there courts of equity will not interfere to mitigate the penalty or forfeiture incurred, for that would be a contravention of the direct expression of the legislative will." 2 Story, Eq. § 1326. The true rule is that where a contract sought to be enforced springs out of a violation of statute, the court will leave the parties where it finds them, withholding its aid from both. Seneca Co. Bank v. Lamb, 26 Barb. 595. If it is urged that a court of equity will leave the possession of the guano where it is, and refuse to give it to the plaintiffs unless they pay the freight, the answer is: The

court cannot require the enforcement of an illegal contract; it cannot, on that account, refuse to take jurisdiction of the action, which is one for the settlement of a partnership business. Upon taking such jurisdiction, the claim of the Iolanthe comes before the court simply as ancillary to the main equity. The only course open to the court would be to require the freight to be paid, which it cannot do, or to dismiss this branch of the case; thereby sending the plaintiffs to an action at law, in which they could certainly recover the cargo without paying freight. This would be to violate the principle always acted upon by courts of equity, of taking the administration of all matters that arise incidentally in the course of a case properly before it, so as to avoid the multiplication of suits. In this case, great inconvenience, delay, and costs would result from sending to a court of law the question of the possession of this cargo. No equitable element exists in the controversy between the master of the Iolanthe and the plaintiffs. It is a pure question of law, and this court, in deciding it, must decide as a court of law would.

As he made his motion in this suit, it was understood that the master of the Iolanthe desired to have his claim decided here. As matter of fact he has had the advantage of the allowance of a part of it. Technically, the motion, which is one for the allowance of not only his advances, but of his freight, puts the Iolanthe in the attitude of one asking active intervention by the court; but I prefer to put the matter upon its real merits. The motion is denied.

RICHTER V. JEROME and others.1

(Circuit Court, E. D. Michigan. November 10, 1885.)

1. DEPOSITIONS DE BENE ESSE-WHEN TAKEN.

Where a bill praying relief had been dismissed by the circuit court upon demurrer, and the case was pending in the supreme court on appeal, with no probability of its being heard in less than two or three years, and there were aged and infirm witnesses whose testimony would be material, if the case were reversed and remanded for a hearing upon the merits, and there was no provision by law for taking their testimony, it was held that the case was a proper one for a bill to take depositions de bene esse.

2. SAME-BILL MUST AVER, WHAT.

In such a bill the plaintiff must aver (1) that there is a suit depending in which the testimony of the witnesses named will be material; (2) that the suit is in such condition that the depositions cannot be taken in the ordinary methods prescribed by law, and that the aid of a court of equity is necessary to perpetuate the testimony; (3) the facts which the plaintiff expects to prove by the testimony of the witnesses sought to be examined, that the court may see that they are material to the controversy; (4) the necessity for taking the testimony, and the danger that it may be lost by delay.

3. SAME-FAILURE TO MAKE PROPER AVERMENTS.

A failure to make the proper averment in any of these particulars is good ground for a demurrer, but ordinarily the allegations of the bill cannot be put In issue by an answer to any greater extent than could similar allegations in an affidavit to take depositions de bene esse.

1 Affirmed. See 8 Sup. Ct. Rep. 106.

In Equity. On motion to set aside order pro confesso, and for leave to answer.

This was a bill to take testimony de bene esse. The bill stated, in substance, the filing of a bill by the plaintiff, in the Western district of this state, against the defendants in this bill, the object of which was to charge with a lien certain lands lying in that district; that defendants demurred to this bill for want of equity; that the demurrer was sustained, and the bill dismissed; that the cause is now pending on appeal in the supreme court of the United States, and that it will not be reached within two years, and if it be reversed there will be a delay of six months more before evidence can be taken. The bill further set forth that the testimony of four witnesses, now living, was necessary to the maintenance of plaintiff's case, whose testimony, in the inevitable lapse of time before it can be taken in the ordinary course of business, is in danger of being lost; that one of these witnesses was over 65 years old, another over 70, and both somewhat infirm, and that they were the only witnesses to the facts which he proposes to prove by them. The bill further set forth the facts which the plaintiffs expected to prove by the testimony of each of these witnesses, and showed the same to be material; that plaintiff had been advised that he had no remedy for perpetuating the testimony of these witnesses, according to the general rules and practice of this court, and could only have relief under a bill of this nature. The prayer was for a substituted service upon the attorneys of the non-resident defendants, and that a commission might issue to take the testimony of the witnesses named in the bill, to be read, provided the case is reversed by the supreme court and remanded for hearing in the circuit. Annexed to this bill as an exhibit was a copy of the original bill, filed in the Western district, the purpose of which was to set aside the judicial sale of a large tract of land as a fraud upon the plaintiff, and others standing in like situation with him. Upon the filing of this bill an order was entered that substituted service as to the non-resident defendants be made, by serving the subpoena upon their solicitors in the main case. This order was afterwards vacated and set aside as beyond the power of the court, and the case left to proceed against the defendant Jerome, the only resident of the state. He afterwards suffered default, and, upon the eve of signing a decree against him, came in and moved to set aside the order pro confesso, and for leave to answer, accompanying his motion with a copy of the proposed answer.

J. P. Whittemore, for plaintiff.

F. A. Baker, for defendant.

BROWN, J. This bill is an anomalous one. So far as we are informed there is no case to be found in the reports of this country of a bill solely to perpetuate testimony. To entitle the party to maintain a bill of this description the plaintiff must aver: (1) That there is a suit depending in which the testimony of the witnesses named will be

material. Story, Eq. § 307. (2) That the suit is in such condition that the depositions cannot be taken in the ordinary methods prescribed by law, and that the aid of the court of equity is necessary to perpetuate the testimony. (3) The facts which the plaintiff expects to prove by the testimony of the witnesses sought to be examined, that the court may see that they are material to the controversy. (4) The necessity for taking the testimony, and the danger that it may be lost by delay.

A failure to make the proper averment in any of these particulars is good ground for a demurrer, but we do not understand that as a rule the allegations of the bill can be put in issue by an answer. In cases of bills strictly to perpetuate testimony, (which will only lie when no suit has been commenced,) the defendant may allege by way of plea any fact that may tend to show that there is no occasion to perpetuate the testimony; as, for instance, that there exists no such. dispute or controversy as that alleged in the bill, or that plaintiff has no such interest in it as will justify his application to perpetuate the testimony. Story, Eq. Pl. 306a. But in bills to take testimony de bene esse there must be a suit depending in some court, and this of itself is evidence of a controversy between the parties. In Ellice v. Roupell, Story, Eq. Pl. 306a, note, Sir J. ROMILLY stated the rule to be in regard to bills for perpetuating testimony that defendant, by consenting to answer the plaintiff's bill, admitted his right to examine witnesses in the case, and that implies all that is demandable. "For if there is really any bona fide controversy between the parties, the right to perpetuate the testimony follows as a matter of course. In a case of the kind under consideration, where a hearing cannot be had in the supreme court in less than two or three years, and the witnesses are some of them old and infirm, it is obvious that the plaintiff ought in some way or another to be able to secure their testimony against the contingency of death, absence, or mental alienation. At the same time resort ought not to be had to the extraordinary power of a court of equity, if the usual methods of procedure prescribed by statute are competent to afford relief. The case is no longer "depending" in the circuit court, and hence is removed from the operation of the act of congress permitting depositions to be taken de bene esse. Rev. St. § 863. From the time the appeal was perfected, the jurisdiction of the circuit court was suspended, and so remains until the cause is remanded from the appellate court. Slaughter-house Cases, 10 Wall. 273. It has also been expressly held that this act has no application to cases pending in the supreme court. The Argo, 2 Wheat. 287.

Acting upon this theory that the deposition could not be taken upon notice under the statute, it seems that plaintiff applied both to the circuit and to the supreme court for leave to take his testimony by deposition under equity rule 70, but this application was refused upon the ground that he might proceed to take the depositions