Sale when fraudulent as to third persons.-The effect of fraud on the sale, or warranty, of goods has already been considered (h). And we have seen that if a man sell goods, and still continue in possession as visible owner thereof, such sale may be fraudulent and void as against creditors, so that the goods may be taken in execution by them (i).

An agreement in consideration of the sale, or relinquishment, of an office, although it may not fall within the enactments of the statutes on the subject (k), is void on the ground of fraud, if it be made without the knowledge or sanction of the officer, or establishment, having the right of appointment to such office (7). And where A., who held an office for life, in the gift of B., agreed with C. to resign, and to procure the appointment for him, and C., in consideration thereof, agreed that A. should have a moiety of the profits; and A., having resigned, procured the appointment of C.; it was held, that such agreement, not having been communicated to B., was a fraud on him (m).

SECTION II.

Of Contracts Void by Statute

1. In General.

2. Usury.

3. Gaming and Horse-racing.

4. Stock jobbing.

5. Illegal Companies or Associations.

6. Of Sales of Offices rendered Illegal by Statute.
7. Of Illegal Sales of Goods (ante, 331 to 339).

8. Of Contracts made on Sundays.

9. Of Illegal Charges on Benefices.

1. IN GENERAL.

If any part of the entire consideration for a promise, or any part of an entire promise not in its nature capable of separation, be illegal, either at common law or by statute, the whole agreement is void (n).

(h) Ante, 321, 353. (i) Ante, 324.

(k) Post, sect. 2, div. 6.

(1) Parsons v. Thompson, 1 H. Bla. 322, 327; Harrington v. Du Chatel, 1 Bro. C. C. 124; Blachford v. Preston, 8 T. R. 89.

(m) Waldo v. Martin, 4 B. & C. 319; 6 D. & R. 364, S. C.

(n) Featherstone v. Hutchinson, Cro. El. 199; Bridge v. Cage, Cro. Jac. 103; Morris v. Chapman, SirT. Jones, 24; Scott v. Gillmore, 3 Taunt. 226; Vin Ab., Action, Assumpsit. Of partial weakness of consideration, ante, 51,52. As to part of a contract being void by Statute of Frauds, ante, 52, 307, 411,

412.

Where a contract contains an independent stipulation, void at common law, (as a general restriction of trade (o) ), not affecting or forming part of the entire consideration or promise; here the invalid stipulation may be rejected, and the remainder of the contract shall stand. So where the condition of a bond consists of several distinct parts, some lawful, others not so; it is good for so much as is lawful, and void for the rest (p).

A distinction has been taken in the books between a deed or condition void in part by statute, and the case of such an instrument being in part void at common law. "A statute," it has been said (q), "is like a tyrant-where he comes he makes all void; but the common law is like a nursing father-it makes only void that part where the fault is, and preserves the rest." And it has been laid down that if part of a deed or condition be contrary to a statute, the remainder, (even, it seems to have been considered, though it be distinct,) shall also be void (q).

But this distinction, as regards partial illegality by statute, seems only to apply to cases where the statute enacts that an agreement or deed, in violation of its provisions, shall be wholly void (r). At all events there are instances in which the invalidity of part of a deed, even by virtue of a statute, shall not destroy the whole; and the remainder, being legal and distinct, and capable of separation from the illegal provision, shall stand, there being no express words in the act to render the whole void.

Thus, the Mortmain Act, 9 G. 2, c. 36 (s), makes void all gifts or grants, &c., to charitable uses; but where a deed contained several limitations, one of which was void, as being to a charitable use, the court held that the statute did not vitiate the other limitations, although included in the same deed (t). And it was decided upon the Property Tax acts, that a provision (in violation thereof) in a deed, that the tax should not be allowed, or

(0) M'Allen v. Churchill, 11 Moore,

483.

(p) 1 Saund. 66 a, note 1; infra, note (q).

(q) Maleverer v. Redshaw, 1 Mod. 35, 36; Norton v. Simmes, Hob. 14; Mosdel v. Middleton, 1 Ventr. 237; per Lawrence, J., Morgan v. Horseman, 3 Taunt. 244, 245; 1 Saund. 66 a, n. 1; per Wilmot, C. J, Collins v. Blantern, 2 Wils. 351; per Lord Ellenborough, C. J., Neuman v.

Newman, 4 M. & Sel. 70.

(r) And see, per Gibbs, C. J., Doe v. Pitcher, 6 Taunt. 369; Norton v. Simmes, Hob. 14; Greenwood v. Bishop of London, 5 Taunt. 746, per Gibbs, C. J.

(s) Construction of this act, Doe v. Hawthorn, 2 B. & Al. 96. Copyholds within it; Doe v. Waterton, 3 B. & Al. 149.

(t) Doe d. Thompson v. Pitcher, 6 Taunt. 359.

deducted from payments to be made, did not affect the validity of the rest of the instrument (u). And although a bill of sale, for transferring the property in a ship, by way of mortgage, may be void as such, for want of reciting the certificate of registry, as required by the 26 G. 3, c. 60, s. 17; yet the mortgagor may be sued upon his personal covenant contained in the same instrument, for the repayment of the money lent (x). And the grant of a rent charge on a benefice may be void as regards the charge; yet a personal covenant, even in the same deed of grant, to pay the rent, is not therefore invalid (y). It is also a rule of law, that the words of a statute are not to be construed so as to extend beyond the mischief contemplated by the act, where such construction would be injurious to the interest of third persons (2).

It seems, that if part of an entire parol contract be void for want of writing, under the Statute of Frauds, the agreement is void in toto (a).

Matters prohibited under a penalty.-It seems, that although a statute merely inflict a penalty for doing a certain act, without expressly prohibiting such act, a contract having such matter for its consideration or object, is invalid. Clearly, if an act of parliament expressly prohibit the transaction, in respect whereof an agreement is entered into (b), such contract must, in furtherance of the views of the legislature, be held invalid. But the question is, whether, if there be no distinct prohibitory clause, and a penalty only be inflicted on the doing of a certain act, the common law will sanction the contract, and consider that the payment of the penalty is the only consequence resulting from the transgression of the statute; or will treat the agreement as void,

(u) See Redshaw v. Balders, 4 Taunt. 57, 105, 113, 553; Howe v. Synge, 15 East, 440; vide 1 Wms. Saund. 66 a, note d.

(x) Kerrison v. Cole, 8 East, 231; vide Biddell v. Leeder, 1 B. & C. 327; 2 D. & R. 499, S. C.; Mortimer v. Fleeming, 4 B. & C. 120; 6 D. & R. 176, S. C.

(y) Monys v. Leake, 8 T. R. 411; Kerrison v. Cole, 8 East, 231; Gibbons v. Hooper, 2 B. & Ad. 734. See also Greenwood v. The Bishop of London, 5 Taunt. 727, where the court separated the simoniacal part of the transaction from that part of a conveyance which was legal, and allowed

the latter to prevail: it being capable of separation from the invalid portion. But simony is a common law as well as statutable offence; and see Newman v. Newman, 4 M. & Sel. 66; and post, 560, 561.

(z) Edwards v. Dick, 4 B. & Al. 216, per Holroyd, J. supra, n. (y). See an instance upon the 13 Eliz. c. 10, s. 3; and upon the gaming act, Edwards v. Dick.

(a) Ante, 57, 307, 411, 412.

(b) As an agreement to dance at an unlicensed theatre; see Gallini v. Laborie, 5 T. R. 242. And see De Begnis v. Armistead, 10 Bing. 107; ante, 473.

and thereby add a punishment not expressly provided by its

enactments.

In some of the older cases, it seems to have been considered that the contract is not void, if there be no distinct prohibition, and the act stipulated for be only forbidden under a penalty (c). And Lord Ellenborough appears to have been of opinion, that an unlicensed surgeon might sue for his fees, although the statute 3 H. 8, c. 11, prohibited persons from practising as surgeons, without a licence, under a penalty (d). So, it has been held that a factor selling a parcel of prize manufactured tobacco, consigned to him as a dealer in tobacco, from his correspondent, without being entered as a dealer in tobacco, as required by the excise law under a penalty, may yet sue the vendee for the price, there being no fraud on the revenue (e). But in Bartlett v. Vinor (f), Holt, C. J., observed, "every contract made for, or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself doth not mention that it shall be so, but only inflict a penalty on the defaulter; because a penalty implies a prohibition, though there are no prohibitory words in the statute."

The statute 39 G. 3, c. 79, s. 27, provides that printers shall affix their names to any books they print; and that if they omit so to do, they shall forfeit 201. for each copy. The court held that a printer who has neglected to affix his name to a book, cannot recover for labour or materials used in printing it (g). And Mr. Justice Bayley observed, that where a provision is enacted for public purposes, he thought it made no difference whether the thing was prohibited absolutely, or only under a penalty. In Drury v. Defontaine (h), the court remarked, "It has been determined, that the holding a fair on a Sunday would be illegal, but that the contract would not be void. The law is since changed; and if any act is forbidden under a penalty, a contract to do it is now held void." And in exparte Dyster (i), which arose in bankruptcy before Lord Eldon, where the question was, whether a broker of the city of London could legally act as a principal in

the sale and purchase of goods, he being bound under a penalty by the regulations of the city not to trade as a principal, his lordship said, "the first point of objection resolves itself into this, whether the proposition, that a broker of the city of London cannot act as a principal be founded on a prohibition of general law, or a mere municipal regulation? If on the former, it is quite clear that a court of justice can give no assistance to the enforcement of contracts which the law of the land has interdicted (k)."

The distinction once made in reference to contracts, between mala prohibita, and mala in se, is now denied (7); and there can be little doubt of the soundness of the doctrine, that full effect shall be given to the provisions of a statute forbidding an act to be done under a penalty, by deciding that a contract, grounded on such act, is invalid (m).

It is clear, that if a statute inflict a penalty for the commission of a certain act in order to prevent a fraud, and for the protection of any particular individuals, or the public health, a party cannot recover on a contract founded on a transaction by which he transgresses the enactment. Several instances, illustrating and founded upon this principle, have been already mentioned (»).

When performance excused by statute.--" The difference where an act of parliament will amount to a repeal of a covenant, and where not, is this: where a man covenanted not to do a thing which it was lawful for him to do, and an act of parliament comes after and compels him to do it, there the act repeals the covenant; and, vice versa; but where a man covenants not to do a thing which was unlawful at the time of the covenant, and afterwards an act makes it lawful, the act does not repeal the covenant (o)."

2ndly. USURY (p).

It is enacted by the statute, 12 Ann., s. 2, c. 16,

66 that no

(k) Vide Kemble v. Atkins, Holt's v. Armistead, 10 Bing. 107. N. P. C. 435, 436; Coates v. Hatton, 3 Stark. R. 61.

(1) Aubert v. Maze, 2 B. & P. 374, 375; Bensley v. Bignold, 5 B. & Al. 341; Collins v. Blantern, 2 Wils. 351.

(m) And see 3 Chitty Com. L. 83; Tyson v. Thomas, 1 M'Clel. & Y. 119; Gibbons v. Rule, 12 Moor, 539; 4 Bing. 301, S. C.; Brown v. Duncan, 10 B. & C. 93, 99; see De Begnis

(n) Ante, 334, 335.

(0) Per Holt, C. J., Brewster v. Kitchin, 1 Ld. Raym. 321; citing Dyer, 27, pl. 178, 186, 187, 188; and 48, pl. 5. And see Touteng v. Hubbard, 3 B. & P. 301; Jaques v. Withy, 1 H. Bla. 65; Barker v. Hodgson, 3 M. & Sel. 270.

(p) See R. B. Comyn's, Ord's, and Plowden's, Treatises on Usury.