defeat the operation of laws intended to declare general principles. In England, however, these distinctions appear no longer to exist; and, in a recent case, Baron Parke said, "Notwithstanding some dicta apparently to the contrary, if the contract be rendered illegal, it can make no difference in point of law whether the statute which makes it so has in view the protection of the revenue, or any other object."* This would result in a simple and uniform rule, making void all contracts growing out of acts forbidden by law, and barring all actions upon them; but the Supreme Court of the United States has said "that whatever may be the structure of the statute in regard to the prohibition and penalty, or penalty alone, it is not to be taken for granted that the legislature meant that contracts in contravention of it are void, in the sense that they are not to be enforced in a court of justice; that the statute must be examined as a whole, to find out whether or not the makers meant that a contract in contravention of it was to be void, so as not to be enforced in a court of justice;" and applying this rule of construction to the case of a note given for slaves exported into Mississippi, in violation of the statute of that State regarding the importation of slaves, they held that an action would lie." I cannot but think that this decision introduces a distinction altogether too nice and refined to be susceptible of practical application. It does not, however, follow that when an act is forbidden by statute, every thing done in contravention of the act is to be considered void. This would lead to results of too serious a character. So, in regard *Cope vs. Rowland, 2 Mees. & W. 157. + Harris vs. Runnels, 12 Howard, 79. to marriage, where a statute imposes a penalty on an officer for solemnizing the union, but does not in words declare the marriage void, as in Massachusetts in regard to persons above the age of consent but below certain other periods of life; the marriage is valid, and the penalty only attaches to the officer who performs the act expressly prohibited.* It must be further borne in mind, that the invalidity of contracts made in violation of statutes, is subject to the equitable exception that, although a corporation, in making a contract, acts in disagreement with its charter, where it is a simple question of capacity or authority to contract, arising either on a question of regularity of organization or of power conferred by the charter, a party who has had the benefit of the agreement cannot be permitted, in an action founded on it, to question its validity. It would be in the highest degree inequitable and unjust, to permit the defendant to repudiate a contract the fruits of which he retains.+ And the principle of this exception has been extended to other cases. So a person who has borrowed money of a savings institution upon his promissory note secured by a pledge of bank stock, is not entitled to an injunction to prevent the prosecution of the note, upon the ground that the savings bank was prohibited by its charter from making loans of that description.‡ *King vs. Birmingham, 8 B. & C. 29; Milford vs. Worcester, 7 Mass. 48; Parton vs. Hervey, 1 Gray, 119. † Palmer vs. Lawrence, 3 Sand. S. C. 162; Steam Navigation Co. vs. Weed, 17 Barb. 378; Chester Glass Co. vs. Dewey, 16 Mass. 94; M'Cutcheon vs. Steamboat Co., 13 Penn. R. 13; Potter vs. Bank of Ithaca, 5 Hill, 490; Suydam vs. Morris Canal and Banking Co., 5 Hill, 491; Sackett's Harbor Bank vs. Lewis Co. Bank, 11 Barb. 213. Mott vs. U. S. Trust Co., 19 Barb. 568. The deference paid to the statute law is expressed in the rule, that where an instrument contravenes a rule of common law, the invalidity is confined to the particular clause; but where an instrument contains a clause or provision in contravention of a statute, it renders the whole instrument invalid.* A bond, executed in pursuance of a compulsory statute, must be precisely in accordance with it; and if it contains provisions not warranted by the statute, it is void.+ Statutes are not to be evaded, any more than they are to be disobeyed. So, where a law fixes peremptorily the period of taking an appeal from a judgment, the court cannot, by setting aside the judgment and directing it to be entered anew of a later date, effect the object of extending the time to appeal. Of Remedies for the violation of Statutes.-The general rule of the English law is, that where a man has a temporal loss or damage by the wrong of another, he may have an action on the case to be repaired in damages. This principle is carried out and applied to statutes by an old English enactment, which gives a remedy, by action on the case, to all who are aggrieved by the neglect of any duty created by law. * Nicholson vs. Leavitt, 4 Sandf. 252. + People vs. Mitchell, 4 Sandf. 466; People vs. Meighan, 1 Hill, 298; in this case, the bond was void by express provision of the statute; and generally, I suppose, if a bond given under a statute contains provisions which the statute does not contemplate, the instrument is void only for the excess. Armstrong vs. The United States, 1 Peters, C. C. U. S., p. 46'; Van Deusen es. Hayward, 17 Wend. 67. Bank of Monroe vs. Widner, 11 Paige, 529; Humphrey vs. Chamberlain, 1 Kern. 274. Com. Dig., Action upon the Case, A. [ 1 Stat. 13 Edw. I. c. 50, A. D. 1285. So says Lord Campbell, C. J., in Couch vs. Steel, 3 Ellis and Blackburn, Q. B. 402 and seq.; but I should think the provision only applied to the acts of that particular parliament,— “Omnia prædicta statuta." See 2d Inst. 486. And the general rule, that in every case where a statute enacts or prohibits a thing for the benefit of a persor, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the law in question, is declared by the text-writers of our jurisprudence.* If a new right is created by statute, and no remedy prescribed for the party aggrieved by the violation of such right, the court, upon the principle of a liberal or comprehensive interpretation of the statute, will presume that it was the intention of the legislature to give the party aggrieved a remedy by a common-law action for the violation of his statutory right; and he will be permitted to recover in an appropriate action founded upon the statute.† As a general rule, it may be assumed that wherever a power is given by statute, every thing necessary to make it effectual, or requisite to attain the end, is implied; and that where the law requires a thing to be done it authorizes the performance of whatever may be necessary for executing its commands.§ So, where a statute authorized a sheriff to sell the right and interest of a pledgor on execution against him, but did not confer any authority on him to seize or take into his possession the property in the hands of the pledgee, it was held that he had it ex necessitate, as another statutory provision declared that no personal property should be exposed for sale by a sheriff unless the same *Com. Dig., Action upon Statute, F.; Dudley vs. Mayhew, 3 Comstock, 9. † 2 Coke's Inst. 74, 118; Bacon's Abr. 16; Clark vs. Brown, 18 Wend. 213, 220; Smith vs. Drew, 5 Mass. 514. 1 Kent Com. 464. Foliamb's Case, 5 Coke, 115. were produced at the time.* Quando lex aliquid concedit, concedere videtur et id per quod devenitur ad illud. Questions often arise as to the election of remedies for the violation of statutes. Where a right originally exists at common law, and a statute is passed giving a new remedy without any negative, express or implied, upon the old common law, the party has his election either to sue at common law or to proceed upon the statute. The statutory remedy is merely cumulative. So against a witness who neglects to attend in obedience to a subpoena, the injured party may have either an action on the case for damages, or an action on the statute for the penalty: This old English rule has been repeatedly recognized and declared in this country.§ So, the statutory remedy by distress against beasts doing damage, does not take away the common-law action of trespass. So, giving a superadded penalty for the eviction or continuance of a nuisance, does not prevent the common-law right of the public to have it indicted and removed, nor does it prevent its being abated in the usual way by individuals. So, a clause in a railroad act, authorizing the directors to exact a forfeiture of the stock and previous payment, as a penalty for non-payment of installments, does not, before any forfeiture has been declared, impair the remedy of the directors to enforce payment by action at common law * Stief vs. Hart, 1 Coms. 20; decided, however, by a divided court. + Comyn's Digest, Action on Statute, C. Pearson vs. Isles, 2 Douglas, 556. Almy vs. Harris, 5 J. R. 175; Smith vs. Drew, 5 Mass. 514. | Colden vs. Eldred, 15 J. R. 220. See also, Clark vs. Brown, 18 Wend. 213, 220; Stafford vs. Ingersoll, 3 Hill, 39. Renwick vs. Morris, 3 Hill, 621, and S. C. in error, 7 Hill, 575. |