that the mere fact of the Plaintiff having, at the Defendant's request, discharged certain debts due from the Defendant, did not implicate the Plaintiff in the illegal transaction in which those debts had been contracted. He was therefore entitled to recover on the money counts. If he had placed the money in the Defendant's hands. instead of himself discharging the Defendant's debts, the whole claim would have stood upon the same footing as the 30%. advanced to the Defendant himself; and between placing the money in the Defendant's hands, or in the hands of a creditor at the Defendant's request, there was no substantial difference. In Gallini v. Laborie, the Plaintiff himself was conducting the unlicensed theatre, and, therefore, could not enforce a contract by which he called on the Defendant to violate the law. Ludlow insisted that the Plaintiff here, having a part interest in the conduct of the Liverpool theatre, must be taken to have paid the sums in question in furtherance of the illegal concern. Cur. adv. vult. TINDAL C. J. We can entertain no doubt that the agreement between the Plaintiff and Defendant bearing date the 21st of September 1831, was an illegal agreement. It was an agreement to become equal sharers in the profits to be derived from acting operas and ballets at a theatre not licensed according to the provisions of the statutes 10 G. 2. and 28 G. 3.; and from the language of part of the agreement, we can feel no doubt but that it was known to both parties, at the time of entering into it, that exhibitions in such unlicensed theatres was a breach of the law. If, therefore, the bill of exchange had been given for the share of profits claimed by the Plaintiff, or for the 1833. DE BEGNIS v. ARMISTEAD. the excess of advances made by the Plaintiff on the account of such illegal partnership, it is clear, upon the authority of Mitchell v. Cockburne (a), that the Plaintiff could recover no part of his demand. But it is contended by the Plaintiff that the jury having expressly found that the bill of exchange was given in respect of three distinct payments made by the Plaintiff, the bill of exchange may be left out of view altogether, and that the sums so paid may be recovered under the money counts. The question therefore is, whether these payments were made under circumstances which will enable the Plaintiff to recover all or any of them upon the money counts. 66 The principle by which the present case is to be decided is that which is very clearly expressed by Holt C. J. in Bartlett v. Vinor (b), 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 a penalty implies a prohibition, though there are no prohibitory words in the statute." The same principle is more briefly expressed by Lord Ellenborough in the case of Langton v. Hughes (c)," What is done in contravention of the provisions of an act of parliament, cannot be made the subject of an action." Now, as to one of the sums, viz. the sum of 787., it appeared in evidence that the ballet master, when in London, applied to the Plaintiff, at the request of the Defendant, to advance a sum of money on the credit of the Defendant, to pay the expense of carrying down the ballet master, and the company which he had hired, from London to Liverpool. This sum the Plaintiff accordingly advanced to the ballet master. As the De (a) a H. Bl. 379. (b) Carth. 252. (c) x M. & S. 596. fendant &c. Nevertheless the lfully, and improperly his said gig and horse, relessness, negligence, nduct of the Defendof the Defendant then reat violence upon and e Plaintiff, and thereby to pieces, and damaged he Plaintiff thereby then ered of little or no value the said John Williams hen and there cast and iolence from and out of ground there, and by oresaid, the Plaintiff was n, and put to expense for uilty. 1833. WILLIAMS v. HOLLAND. J., it appeared that the he side of a road twentyeel on the footway, when the act of racing with cart, upset and broke it he Plaintiff's children. efendant's horse had run Justice left it to the jury s the result of accident, ness in the Defendant. d gave a verdict with was also contended, on t the action was miscontrespass instead of case. rved that point for the Bompas 1833. DE BEGNIS v. ARMISTEAD. the excess of advances made by the Plaintiff on the account of such illegal partnership, it is clear, upon the authority of Mitchell v. Cockburne (a), that the Plaintiff could recover no part of his demand. But it is contended by the Plaintiff that the jury having expressly found that the bill of exchange was given in respect of three distinct payments made by the Plaintiff, the bill of exchange may be left out of view altogether, and that the sums so paid may be recovered under the money counts. The question therefore is, whether these payments were made under circumstances which will enable the Plaintiff to recover all or any of them upon the money counts. The principle by which the present case is to be decided is that which is very clearly expressed by Holt C. J. in Bartlett v. Vinor (b), · 66 - 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 a penalty implies a prohibition, though there are no prohibitory words in the statute." The same principle is more briefly expressed by Lord Ellenborough in the case of Langton v. Hughes (c), "What is done in contravention of the provisions of an act of parliament, cannot be made the subject of an action." Now, as to one of the sums, viz. the sum of 787., it appeared in evidence that the ballet master, when in London, applied to the Plaintiff, at the request of the Defendant, to advance a sum of money on the credit of the Defendant, to pay the expense of carrying down the ballet master, and the company which he had hired, from London to Liverpool. This sum the Plaintiff accordingly advanced to the ballet master. As the De (a) 2 H. Bl. 379. (b) Carth. 252. (c) M. & S. 596. fendant fendant had by the terms of the agreement engaged to furnish every evening of the performance, after the opera, a ballet of good and efficient dancers at his expense, this sum of money, paid for the express purpose of conveying them down to the place where the illegal exhibition was to be made, appears to us to fall within the principle above laid down. Again, as to the sum of 120l., the Plaintiff, at the request of the Defendant, paid that sum to Nathan for dresses purchased of him for the very purpose of being used by the dancers in the unlicensed theatre. It is true that the Defendant had also a licensed theatre at Manchester, and that the dresses would in all proba→ bility be, and in fact were, used in both the theatres. But we cannot upon the evidence doubt that the object and purpose of the Plaintiff in paying for the dresses, was not to assist the Defendant in preparing for his own theatre at Manchester, in which the Plaintiff had no interest, but to assist in carrying into effect the illegal contract between himself and the Defendant, of sharing in the profits of the unlicensed theatre at Liverpool. This sum, therefore, appears to us to fall within the same rule as the former. But, as to the remaining sum of 30%., the only evidence is, that the Defendant had borrowed that sum of the Plaintiff to pay his expenses at an hotel in London, where the Defendant was residing in the month next after the agreement was made. It seems, therefore, to us that there is no ground for holding this money to have been advanced for the necessary purpose of carrying the agreement into execution; and therefore as to this sum, we think the verdict ought to stand. Rule absolute to reduce the verdict to 80%. 1833. DE BEGNIS บ. ARMISTEAD. |