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. VI.; 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." 1

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, "j "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."

3

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. VI.—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 1 Mod. 35.

3 See Shep. Touch. 374; Plowd. 68. acc. 4 Hob. 12; 1 Brownl. 64; Mo. 856.

2 Hob. 14.

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

1 Mouys v. Leake, 8 D. & E. 411.

2 Kerrison v. Cole, 8 East, 231.

2

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.

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.3

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

1 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.

2 Cro. Eliz. 529; 2 And. 55.

3 See Ley, 79; Hob. 14 a, note (2) by Judge Williams; Bac. Ab. Covenant, G; Offices, &c., F.

4 2 D. & E. 603; 5 D. & E. 641.

judges," says lord C. J. Wilmot, "formerly thought an act of parliament might be eluded, if they did not make the whole void, if part was void."'

It is often laid down in the books, that if any part of an agreement is void by the statute of frauds, &c., the whole is void. An examination of the cases, however, will show that this is too broadly asserted, and that the true doctrine does not rest upon any distinction between agreements void in part by statute, and void in part by the common law. The principle of the decisions under the statute of frauds, &c., is the same as in the other cases already noticed, and is this to wit-if the part of the agreement, which is void by the statute, is so involved with the rest of the agreement (which, if standing alone would be valid,) as not to admit of separation, the whole is void; otherwise not.

The first case on this point is lord Lexington v. Clarke,' where a woman, after her husband's death, in consideration of being permitted to occupy premises which were leased to her husband, promised orally to pay the rent which had accrued during his life, as well as the rent which should subsequently accrue during her occupation. The court held this to be an entire agreement; and the promise, as to one part, being void by the statute of frauds, &c., it could not stand good for the other part. In Cooke v. Tombs,' the same rule was applied to an unwritten agreement for the sale of real and personal property; to wit, houses, a dock-yard, &c., and timber for ship-building. On the authority of this last case, Macdonald, C. B., shortly after ruled the point in the same way, at Nisi Prius.

1 2 Wils. 351.

2 2 Vent. 223.

3 2 Anstr. 420. According to subsequent decisions, the agreement concerning the personal property was void also, under the statute. But as it was not so regarded by the court, the case supports the decision in Lexington v. Clarke. See Roberts on Frauds, 111, note (53).

Lea v. Barber, 2 Anstr. 426, note.

Three years afterwards, the court of king's bench decided the point in the same way, in Chater v. Beckett.' Lord Kenyon said, "the promise was void in part by the statute, and the agreement being entire, the plaintiff cannot separate it, and recover on one part of the agreement, the other being void." Grose, J., said "it was one indivisible contract, and the plaintiff cannot recover on any part." This doctrine has been fully adopted by the supreme court of New York," and stands on the same principle which avoids any entire and inseparable contract, when part of it is void for any cause. So lord C. J. Abbott understood the doctrine. In Mayfield v. Wadsley,' he says, the contract being void in part by the statute of frauds might be void in toto, "if it had been one entire contract, made at one time, and for one price; but here there were distinct contracts, and separate prices were fixed." Accordingly the former cases held not to apply to the case then before the court.

were

The general doctrine, as to agreements that contravene legislative enactments, is, shortly, as follows.

Whenever the consideration of an agreement, or the act undertaken to be done, is in violation of a statute, the agreement is void, and no action can be maintained, by either party, for the breach of it.

It was held, in the time of Elizabeth, that when a statute merely inflicted a penalty for doing an act, or for making a contract of a specified kind, without prohibiting the act or contract, the payment of the penalty was the only legal consequence of a violation of the statute;-that the contract was valid, and might be enforced. Thus, under the statute of 27 Hen. VI., which imposes a penalty for selling property at a fair on Sunday, it was held that the contract of

1 7 D. & E. 201; S. P. 10 Barn. & Cres. 664.

2 Crawford v. Morrell, 8 Johns. 253.

3 3 Barn. & Cres. 361; S. C. 5 Dowl. & Ry. 228. See also Wood v. Benson, 2 Crompt. & Jerv. 94.