It was held that the provision of the 20 & 21 Vict. c. 43, which requires the appellant from a decision of justices to transmit the case in three days to the court of appeal, could not be waived by the respondent, on the ground either that it went to the jurisdiction, or that it related to a criminal case, or that the justices had an interest in the observance of the rule (a). [Where an act extending the jurisdiction of justices of the peace to attachment executions, provided that "the wages of any laborer, or the salary of any person in public or private employment, shall not be liable to attachment in the hands of the employer," it was held that the defect was one of jurisdiction and could not be waived.160]

8448. Estoppel from Claiming Benefit of Statute.-It may be added here, that a person is sometimes estopped by his own conduct, from availing himself of legislative provisions intended for his benefit. For instance, a prisoner for debt, representing a person to be an attorney, to attest a warrant of attorney, who did not belong to that profession, could not afterwards be allowed to impeach the warrant on the ground of inadequate attestation (b); and the grantee of an annuity, on whom the duty is cast of enrolling the deed of grant, would be estopped from taking any advantage from his neglect to enroll it (c). [So, although a borrower cannot, by a contemporaneous prospective agreement waive the provisions of the usury laws," yet the right to set up the defence of usury may be lost by him who would be entitled to set it up; as, where his agent represented to the lender buying a note and mortgage that the same was an honest debt and would be paid; or where the borrower, being the mortgagor,

162

(a) Morgan v. Edwards, 5 H. & N. 415; Peacock v. R., 4 C. B. N. S. 264, 27 L. J. 229. Comp. Peters v. Sheehan, 16 M. & W. 213; Great N. R. Co. v., Ivett, 2 Q. B. D. 284; R. v. Hughes, 4 Q. B. D. 615. See the remarks in Park Gate Iron Co. v. Coates, L. R. 5 C. P. 634, dubit, Keating, J.; Bennett v. Atkins, 4 C. P. D. 80.

160 Firmstone v. Mack, 49 Pa. St.

163

allows the property to be sold under a foreclosure, without attempting to avoid the mortgage.' In such cases, the borrower would be estopped from asserting his rights under the usury laws, and affecting innocent purchasers with the consequences thereof.""]

163 Elliott v. Wood, 53 Barb. (N. Y.) 285.

144 See, also, Weaver v. Lutz, 102 Pa. St. 593, ante, § 444.

CHAPTER XVI.

EFFECT OF STATUTE UPON CONTRACTS MADE IN CONTRAVENPUBLIC AND PRIVATE IMPLIED REMEDIES.

TION THEREOF.

449. Distinction between Void and Illegal Contracts.

450. Contracts Prohibited under Penalty.

§ 451. Contracts Founded on Illegal Consideration.

452. Contracts Connected with, Promoting, Involving or Growing out of Illegal Acts.

§ 454. Sales for Illegal Purposes.

§ 455. Forms, etc., of Contracts Prescribed by Statute.

456. Effect on Contracts of Absence of Statutory Personal Qualifications.

457. When Contract contrary to Statute Upheld. Revenue Laws. §458. Statute Operating on Particular Party or Declaring Particular

Result.

§ 459. Statute made for Protection of One Party. Remoteness.

§ 460. Partial Illegality of Contract.

§ 461. Effect of Statute Rendering Performance of Contract Illegal. § 463. Statute Implies Means of Enforcement.

464. Implied Remedies Where an Act Prohibits or Commands Something Public.

§ 465. Statute Creating Obligation and giving Remedy in Same Section. § 466. Statute Creating Obligation to Pay Money.

§ 467. Statute Creating Public Duty and giving Remedy, in Different Sections.

§ 468. Same Rule as to Private Duties.

469. Where Third Parties Interested in Duties or Prohibitions.

470. Non-performance of New Duty, etc. Penalty Recoverable by Aggrieved Party.

§ 471. Right of Action Limited to those Directly within Gist of Enact

ment.

§ 472. Former Latitude in this Respect. Later Rule.

§ 473. Special Injury by Breach of Public Duty Necessary for Action. Remoteness.

§ 474. Statutes Foreign to Individual Interests give no Private Action.

$449. Distinction between Void and Illegal Contracts.—A contract is not illegal merely because it is void or not enforceable. An Act, for instance, which limits the contracting power

of a company to certain contracts only, does not thereby render illegal, though it leaves void, all contracts which do not fall intra vires (a). An Act which provided that a professional man should not recover on a contract, unless he was duly qualified, would make the contract of an unquali fied person similarly void, but not illegal (6). But when a statute prohibits an act, any contract made respecting it is illegal as well as void (c). What has been done in contravention of an Act of Parliament, it has been said, cannot be made the subject of an action (d). Thus, as the Metropolitan Building Act prohibits the use of combustible materials for building walls in the metropolis, the builder of any such walls could not maintain an action for the price of erecting them (e). A waterman being prohibited by statute from taking an apprentice, unless he was the occupier of a tenement wherein to lodge him; it was held that no settlement was gained by service under an indenture of apprenticeship made contrary to this provision (ƒ). [So, where an act prohibits the employment of a certain class of minors in manufacturing establishments, no right of action accrues for wages carned by a minor falling within that category and prohibition; for no rights can spring from a void and prohibited contract." A federal statute declaring all assignment of mail contracts with the United States null and void, a partial assignment of such a contract will not support a promise to pay for the interest thus attempted to be assigned. So, agreements to sell rights to a future succession for a particular consideration, being prohibited, are held void in Louisiana. Again, where an

(a) See ex. gr. Ashbury R. Co. v. Riche, L. R. 7 H. L. 653.

(b) Ex. gr., 55 Geo. 3. c. 194; 21 & 22 Vict c. 90; per Willes, J., in Turner v. Reynell, 14 C. B. N. S. 328, 32 L. J. 164; Helps v. Glenister, 8 B. & C. 553; Holgate v. Slight, 2 L. M. & P. 662.

(c) Bartlett v. Vinor, Carth. 253Redpath v. Allen, L. R. 4 P. C.

511.

(d) Per Lord Ellenborough, in Langton v. Hughes, 1 M. & S.

593.

(e) Stevens v. Gourley, 7 C. B. N. S. 99, sup. § 431.

(f) 10 Geo. 2, c. 31; R. v. Gravesend, 3 B. & Ad. 240. [Compare Reading Overseers v. Cumru Overseers, 5 Binn. (Pa.) 81.]

1 Birkett v. Chatterton, 13 R. I. 299.

2 Glidden v. Strupler, 52 Pa. St. 400, 406.

3 Nix v. Bell, 66 Ga. 664.

4 Reed v. Crocker, 12 La. An. 436. The La. Rev. Civ. Code. 1875, 12, declares that whatever is

act, imposed a penalty on any of enumerated series of gaming operations, and declared every contract, note, bill, etc., given or entered into for security or satisfaction of a debt arising from such operations "utterly void and of none effect," it was held that a note given for a gaming consideration was void even in the hands of an innocent holder for value.']

$450. Contracts Prohibited Under Penalty.-When a penalty is imposed for doing or omitting an act, the act or omission is thereby prohibited and made unlawful; for a statute would not inflict a penalty on what was lawful (a). Consequently, when the thing in respect of which the penalty is imposed is a contract, it is illegal and void. In the case above cited,' the Act had declared that it should not be lawful to take the apprentice, and imposed a penalty for doing so (b), and in another, where service under an indenture of apprenticeship as a sweep was similarly treated, the statute had not only declared the apprenticeship" void," but imposed a penalty on the master (c). [So, where a statute, besides declaring the transfer of a government contract void, punishes the same with annulment of the contract, no action can be maintained upon such transfer.] The joint Stock Companies Act, 7 & 8 Vict. c. 110, s. 24, in enacting that every promoter of a company concerned in making contracts. on its behalf before its provisional registration, should be subject to a penalty of 257., impliedly rendered every such contract illegal and therefore void (d). [The National

done in contravention of a prohibitory law is void, although the nullity be not formally declared: Stimson, Amer. Stat. L. p. 143, § 1045.

Harper v. Young, 112 Pa. St. 419; Unger v. Boas, 13 Id. 600. But it said, Ibid., at p. 603, that the indorsee of such a note may sue the indorser on his indorsement.

See, among other cases, Clark v. Ins. Co., 1 Story, 109; Hallett v. Novion, 14 Johns. (N. Y.) 273; Bacon v. Lee, 4 Iowa, 490; Mitchell v. Smith, 1 Binn. (Pa.) 110; Lewis v. Welch, 14 N. H. 294; Skelton