« PreviousContinue »
as is lawful, and void for the residue. Wherever the unlawful part of a contract can be separated from the rest, it will be rejected, and the remainder established. This cannot be done when one of two or more considerations is unlawful—whether the promise be to do one lawful act, or two or more acts, part of which are unlawful—because the whole consideration is the basis of the whole promise. The parts are inseparable. Otherwise there would be two or more contracts, instead of one. But where, for one or more lawful considerations, a promise is made to perform a legal act and also an act illegal, there is no difficulty in sustaining and enforcing the promise pro tanto; for so far the contract has all the properties which the law requires. It is “an agreement, upon sufficient consideration, to do a legal act.” The illegal act, which is also agreed to be done, may be rejected without interference with the other. Therefore, says Hutton, J., “at the common law, when a good thing and a void thing are put together in one self same grant, the same law shall make such a construction, that the grant shall be good for that which is good, and void for that which is void.” By “void,” in this passage, is meant void for illegality, as the context shows, and as it has been received and understood.” So if any part of the condition of a bond be against law, it is void for that part, and good for the rest; or if a bond be given for the performance of covenants contained in a separate instrument, some of which are lawful and others unlawful.” So of parol contracts. But it has been asserted, until it has become a maxim, that if any part of an agreement is contrary to a statute, the whole is void." This distinction manifestly stands on no firm principle; and, upon examination, will not be found, as a general rule, to be supported by authority. The first case on the point is believed to be Lee and wife v. Coleshill," under the statute of 5 Edw. WI. prohibiting the sale of offices, &c. By the third section of that statute, “all such bargains, sales, promises, bonds, agreements, covenants and assurances,” are declared to be void.” According to the report in Croke, Coleshill, a custom-house officer, made one Smith his deputy; and covenanted (inter alia) to surrender his old patent of office and procure a new one to Smith and himself, before a certain day; and that if Smith died before him, he would pay to Smith's executors £300– and gave Smith a bond to perform these covenants. Upon a suit on this bond, by the executors of Smith, it was held that the whole was void, though some of the covenants might be lawful; “otherwise,” said the counsel, “all the meaning of the statute should be defrauded by putting in a lawful covenant within the indenture.” Yet the counsel further said—“for the good covenants, peradventure an action of covenant would lie, if they be not performed;” that is, an action on the covenants, but not on the bond given to secure performance of them. The case is reported somewhat differently in 2 Anderson, 65, by the name of Smyth v. Colshill, but the same ground of decision is taken. Afterwards, the distinction, on this point, between the common law and a statute, was asserted, arguendo, in many cases, as a general principle.” Twisden, J. and lord C. J. Wilmot are reported to have ascribed to lord Hobart the dictum so often repeated in the books, that “a statute is like a tyrant; where he comes, he makes all void. But
* Ley, 79. * See 8 East, 236; 1 Johns. 362. 3 Chamberlaine v. Goldsmith, 2 Prownl. 2S2; Norton v. Syms, Mo. 856. 4 J Saund. 66, note; 1, Pow. on Con. 199; Chit. on Con. 228, 229. (1st ed.)
the common law is like a nursing father; it makes only void that part where the fault is, and preserves the rest.” The cases, in which this distinction is laid down as a general principle, were mostly on bonds taken by officers, contrary to the statute of 23 Hen. WI. ; and it was this statute (the statute, not a statute) which lord Hobart compared to a tyrant. “I have heard lord Hobart say,” says Twisden, J., “that because the statute would make sure work, and not leave it to exposition what bonds should be taken, therefore it was added that bonds taken in any other form should be void; for said he, the statute is like a tyrant, &c.” " That statute prescribes the form of the obligation which an officer shall take from a person arrested, and expressly makes “any obligation, in other form, void.” Hence it is said,” “if a sheriff will take a bond for a point against that law, and also for a due debt, the whole bond is void; for the letter of the statute is so ; for a statute is a strict law; but the common law doth divide according to common reason, and having made that void, which is against law, lets the rest stand.” " To the case of Norton v. Simmes" may be traced most of the dicta in the books, on the point now in question. In the three reports of that case, a principle is advanced, general in its terms; but it is in reference to the statute of Hen. WI.-and the point was not adjudged. The suit, in that case, was on a bond for the performance of several covenants, some of which were void by the common law; and the plaintiff had judgment for damages sustained by the non-performance of the valid covenants. The compiler of Bacon's Abridgment (Sheriff, H. 2.) seems to have understood the distinction as existing only * 1 Mod. 35. * Hob. 14.
* See Shep. Touch. 374; Plowd. 68, acc. 4 Hob. 12; 1 Brownl. 64; Mo. 856.
under the statute of Henry VI. and other statutes (if any) in which a specific form of obligation is prescribed, and all other forms forbidden; and Lawrence, J., in 8 East, 236, 237, expressly asserts the same—which renders it the more remarkable that he should afterwards, in 3 Taunt. 244, have advanced the doctrine as a general one. If then any part of a contract is valid, it will avail pro tanto, though another part of it may be prohibited by statute; provided the statute does not expressly, or by necessary implication, render the whole void; and provided also, that the sound part can be separated from the unsound. As to the possibility of such separation, however, there is no difference between contracts against the common law, and against a statute. Such is the true principle; and such, it will be found, are the modern decisions. Thus—if in a deed a rector or vicar grants a rent-charge out of his benefice, contrary to the statute of 13 Eliz. c. 20, and also covenants personally to pay the rent-charge, he is liable on his covenants, though the grant is void for illegality.' So a bill of sale of a ship, by way of mortgage, though void as such, for want of a recital of the certificate of registry required by statute of 26 Geo. III., may be good as a covenant to repay the money borrowed—such covenant being contained in the same instrument.” So if there be in a deed one limitation to a charitable use, and therefore void by statute of 9 Geo. II., yet other limitations in the same deed, which are not within the statute, are not therefore void.” The case of Greenwood v. Bishop of London" is a strong authority to the same point. A conveyance of an advowson, including the next presentation, was made for an entire sum, and was supported for the advowson only ; the conveyance of the next presentation being void for simony, which is a statute offence. There are also several perfectly analogous cases on the property tax act of 46 Geo. III.” It appears, from these cases, that when the corrupt part of an agreement can be separated from the sound, the latter shall stand, although the former be declared void by statute. And it may be inferred that a case like that of Lee and wife v. Coleshill” would now be differently decided, unless (according to what would seem to be the better opinion) the lawful covenant, in that case, should be deemed dependent on that which was unlawful, and so the void part inseparable from the sound.” In Crossley v. Arkwright and Dann v. Dolman," under the annuity act of 17 Geo. III., it was held that the want of a memorial of an annuity deed, registered according to the directions of the statute, avoided the whole deed, though there were parts of it not connected with the annuity. The court held themselves bound by the words of the statute, which declares annuity deeds, of which a memorial is not registered, “void to all intents and purposes whatsoever.” These decisions were questioned by Mr. Evans, in his notes to the annuity act, and by Mr. Ellis in his treatise on the Law of Debtor and Creditor, p. 377, note (o). By the subsequent decisions in analogous cases (already cited) the part of the deed which related to the annuity would alone seem to be within the operation of the statute. “The
* Mouys v. Leake, 8 D. & E. 411. * Kerrison v. Cole, 8 East, 231. 3 Doe v. Pitcher, 6 Taunt. 359. See opinion of Gibbs, C. J. 4 5 Taunt. 727; S. P. Newman v. Newman, 4 M. & S. 292.
* Wigg v. Shuttleworth, 13 East, 87; Gaskell v. King, 11 East, 165; Howe v. Synge, 15 East, 440; Tinkler v. Prentice, 4 Taunt. 549; Fuller v. Abbott, 4 Taunt. 105; Readshaw v. Balders, 4 Taunt. 57.
* Cro. Eliz. 529; 2 And. 55.
* See Ley, 79; Hob. 14 a, note (2) by Judge Williams; Bac. Ab. Covenant, G; Offices, &c., F.
* 2 D. & E. 603; 5 D. & E. 641.