go to the informer; he was also liable to an action. at the suit of any seaman whose health was injured by the want of medicine (d). This decision was followed by the Court of Exchequer, which held that a water company might be sued for damage done by fire if it failed to keep its pipes charged with water, as required by the Waterworks Clauses Act, 1847, although the same Act imposed penalty for the neglect of this duty (e). But the judgment of the Court of Exchequer was reversed on appeal, and grave doubts were then expressed as to the soundness of the "broad general proposition" laid down by the Court of Queen's Bench (f). Lord Campbell, C. J., had drawn "the a distinction between cases in which performance of a new duty created by Act of Parliament was enforced by a penalty recoverable by the party grieved by the non-performance," and cases in which the penalty was recoverable by a common informer, and had decided that in the latter class of cases the penalty was merely a punishment for an offence against the public, and did not deprive the party grieved of his right of action. The judgment of the Court of Appeal makes this distinction no longer tenable. Again, where a duty is imposed for the special purpose of averting one particular mischief, a person who suffers a different kind of mischief by reason of the non (d) Couch v. Steel, 3 E. & B. 402; 23 L. J. Q. B. 121. (e) Atkinson v. Newcastle and Gateshead Waterworks Co., L. R. 6 Ex. 404. (f) Atkinson v. Newcastle and Gateshead Waterworks Co., L. R. 2 Ex. D. 441. 2. Indirectly. made in of statutes declared void. performance of that duty, has no right of action. Thus, where certain pens were required to be fitted up for the prevention of contagious diseases among cattle, and owing to the absence of these pens the plaintiff's sheep were washed overboard, it was held that he could not recover (g). We turn now to the manner in which the authority of statutes may be enforced indirectly. The rule on this subject is laid down by Lord Contracts Holt. "Every contract made for or about any violation matter or thing which is prohibited, or 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" (h). Therefore where the 10 Geo. II. c. 31, enacted that it should not be lawful for any wherryman to take any person as his apprentice unless he was the occupier of some house or tenement wherein to lodge himself and his apprentice, it was held that an indenture of apprenticeship made in contravention of this section was void (). The same construction was placed upon the 28 Geo. III. c. 48, which imposed a penalty on any person employing a boy under the age of eight as a chinney-sweeper, and an indenture of apprenticeship contrary to the provisions of that Act was held not merely voidable, but absolutely void (k). So where 39 & 40 (g) Gorris v. Scott, L. R. 9 Ex. 125. (h) Bartlett v. Vinor, Carth. 252. 2 M. & W. at p. 157, per Parke, B. See also Cope v. Rowlands, (i) R. v. Gravesend, Inhabitants, 3 B. & Ad. 240. Geo. III. c. 99, provided that pawnbrokers before cannot be contracts In many other cases it has been held that no Actions action can be brought to enforce a contract which brought on is forbidden by statute. Thus the seller of goods in viola has been debarred from recovering their price where tion of he has sold corn by hobbett instead of by bushel (0), or coals without any ticket (p), or without a ticket signed by the labouring meter (q), or bricks of (1) Fergusson v. Norman, 5 Bing. N. C. 76. See as to the provisions of the same statute for the manner in which the names of persons carrying on the business of pawnbrokers are to be made known to the world, and as to the effect of a breach of such provisions, Gordon v. Howden, 12 Cl. & Fin. 237. (m) Macgregor v. Dover and Deal Rail. Co., 18 Q. B. 618. (n) Barton v. Piggott, L. R. 10 Q. B. 86. (0) Tyson v. Thomas, M'Clel. & Younge, 119. (p) Cundell v. Dawson, 4 C. B. 376. (2) Little v. Poole, 9 B. & C. 192. statutes. G smaller dimensions than those specified by statute (r), or butter packed in vessels which were not marked with the name of the seller and the weight of their contents (s), or spirits for the purpose of their being retailed by an unlicensed person (t), or smuggled into England (u), or drugs for the purpose of their being used in brewing (x), or goods for the purpose of their being shipped on board foreign vessels trading to the East Indies (y). Nor can payment for work and labour be recovered by an unlicensed broker (2), (though he can recover for money paid) (a), by a person acting as conveyancer without the required qualification (b), by a printer who has not affixed his name to a book (c), or who has falsely sworn in an affidavit that he is sole proprietor of a newspaper (d), or by a builder who has erected a building in contravention of the provisions of the Metropolitan Building Act (e). Nor can an action be brought to recover money lent for the purpose of playing at an illegal game (f), or of settling losses in (r) Law v. Hodson, 11 East, 300. (s) Forster v. Taylor, 5 B. & Ad. 887. (t) Ritchie v. Smith, 6 C. B. 462; Hamilton v. Grainger, 5 H. & N. 40. (u) Clugas v. Penaluna, 4 T. R. 466. (2) Cope v. Rowlands, 2 M. & W. 149. (a) Smith v. Lindo, 4 C. B. N. S. 395; 5 C. B. N. S. 587. (b) Taylor v. Crowland Gas and Coke Co., 10 Ex. 293. (c) Bensley v. Bignold, 5 B. & Ald. 335. (d) Stephens v. Robinson, 2 Cr. & Jer. 209. (e) Stevens v. Gourley, 7 C. B. N. S. 99. illegal stock-jobbing transactions (g), or paid for the purpose of carrying on an unlicensed theatre (h). An action cannot be brought for the breach of a contract to dance at an unlicensed theatre (i), or upon an agreement to perform stage plays in a place where they are prohibited by law (k), or upon a warranty given on a Sunday (1), or for the infringement of the copyright of a print if the date of its publication is not engraved on it (m), or for rent reserved by a lease of premises intended to be used for boiling oil and tar contrary to the provisions of the Building Act (n). Where a statute prohibits under a penalty an agreement to pay certain expenses, no action lies upon such an agreement (o), and when an Act provides that a person who has paid a bet may recover it by action from the winner, it impliedly deprives the winner of the right to sue for the bet (p). penalties If, however, a penalty is imposed on contracts But where or dealings for the purpose of protecting the are imrevenue and of providing for the proper payment the protec of duties, no prohibition is implied by law, and tion of the (g) Cannan v. Bryce, 3 B. & Ald. 179. (k) Levy v. Yates, 8 A. & E. 129. (1) Fennell v. Ridler, 5 B. & C. 406. (m) Brooks v. Cock, 3 A. & E. 138; Sayer v. Dicey, 3 Wils. 60; though the words of the Act were held directory only in Blackwell v. Harper, 2 Atk. 93. (n) Gas Light and Coke Co. v. Turner, 5 Bing. N. C. 666; 6 Bing N. C. 324. (0) O'Brien v. Dillon, 9 Ir. C. L. R. (Q. B.) 318. (p) Thorpe v. Coleman, 1 C. B. 990. posed for revenue |