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AMERICAN JURIST.

NO. XLV.

APRIL, 1840.

ART. I-LAW OF CONTRACTS.

No. 7.-Of Unlawful Contracts.

ACCORDING to the division of unlawful contracts, which was adopted in our last number, this is the place to consider

II. CONTRACTS WHICH VIOLATE THE PROVISIONS OF A

STATUTE.

Before stating the principles which govern the main subject of this division, it may be well to notice the doctrine respecting contracts void in part only, and the alleged difference, as to this matter, between contracts which violate statutes, and those which violate the common law.

It has heretofore been mentioned that if one of two considerations of a promise be void merely, the other will support the promise; but that if one of two considerations be unlawful, the promise is void. When, however, the illegality of a contract is in the act to be done, and not in the consideration, the law is different. If, for a legal consideration, a party undertakes to do two or more acts, and part of them are unlawful, the contract is good for so much

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as is lawful, and void for the residue. Wherever the unlawful part of a contract can be separated from the rest, it will be rejected, and the remainder established. This cannot be done when one of two or more considerations is unlawful-whether the promise be to do one lawful act, or two or more acts, part of which are unlawful-because the whole consideration is the basis of the whole promise. The parts are inseparable. Otherwise there would be two or more contracts, instead of one. But where, for one or more lawful considerations, a promise is made to perform a legal act and also an act illegal, there is no difficulty in sustaining and enforcing the promise pro tanto; for so far the contract has all the properties which the law requires. It is "an agreement, upon sufficient consideration, to do a legal act." The illegal act, which is also agreed to be done, may be rejected without interference with the other. Therefore, says Hutton, J.,' "at the common law, when a good thing and a void thing are put together in one self same grant, the same law shall make such a construction, that the grant shall be good for that which is good, and void for that which is void." By "void," in this passage, is meant void for illegality, as the context shows, and as it has been received and understood. So if any part of the condition of a bond be against law, it is void for that part, and good for the rest; or if a bond be given for the performance of covenants contained in a separate instrument, some of which are lawful and others unlawful.' So of parol contracts.

But it has been asserted, until it has become a maxim, that if any part of an agreement is contrary to a statute, the whole is void. This distinction manifestly stands on

1 Ley, 79.

2 See 8 East, 236; 1 Johns. 362.

3 Chamberlaine v. Goldsmith, 2 Brownl. 282; Norton v. Syms, Mo. 856. 41 Saund. 66, note; 1 Pow. on Con. 199; Chit. on Con. 228, 229. (1st ed.)

no firm principle; and, upon examination, will not be found, as a general rule, to be supported by authority.

The first case on the point is believed to be Lee and wife v. Coleshill,' under the statute of 5 Edw. VI. prohibiting the sale of offices, &c. By the third section of that statute, "all such bargains, sales, promises, bonds, agreements, covenants and assurances," are declared to be void. Accord

ing to the report in Croke, Coleshill, a custom-house officer, made one Smith his deputy; and covenanted (inter alia) to surrender his old patent of office and procure a new one to Smith and himself, before a certain day; and that if Smith died before him, he would pay to Smith's executors £300— and gave Smith a bond to perform these covenants. Upon a suit on this bond, by the executors of Smith, it was held that the whole was void, though some of the covenants might be lawful; "otherwise," said the counsel, "all the meaning of the statute should be defrauded by putting in a lawful covenant within the indenture." Yet the counsel further said "for the good covenants, peradventure an action of covenant would lie, if they be not performed;" that is, an action on the covenants, but not on the bond given to secure performance of them. The case is reported somewhat differently in 2 Anderson, 65, by the name of Smyth v. Colshill, but the same ground of decision is taken.

Afterwards, the distinction, on this point, between the common law and a statute, was asserted, arguendo, in many cases, as a general principle.' Twisden, J. and lord C. J. Wilmot are reported to have ascribed to lord Hobart the dictum so often repeated in the books, that "a statute is like a tyrant; where he comes, he makes all void. But

Cro. Eliz. 529.

2 See Bac. Ab. Offices, &c. B.

3 See Pearson v. Humes, Carter, 230; Mosdell v. Middleton, 1 Vent. 237; 11 Mod, 94, per Powell, J.; 2 Wils. 351, per Wilmot, J.; 3 Taunt. 244, per Lawrence, J.; 1 Johns. 362.

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