§ 750. We now come to the consideration of contracts in violation of a statute; and the rule in regard to such contracts is, that they are utterly void, whether the consideration of the agreement, or the act to be performed, be in violation of a statute.1 And a note or check made absolutely void by statute is so in the hands of an innocent holder for value.2
§ 751. A statute may either expressly prohibit or enjoin an act, or it may impliedly prohibit or enjoin it by affixing a penalty to the performance or omission thereof. Nor does it make any difference, whether the prohibition be express or implied; in either case a contract in violation of its provisions is void.3 It was, however, formerly held, that, if a statute only annexed a penalty to the performance of certain acts or contracts, without expressly prohibiting them, the penalty was to be considered, not as punishment or prohibition, but only as a tax, which would not invalidate the act or contract, but only subject the party infringing the provision of the statute to the payment of the penalty.1 Thus, under the statute of 27 Henry VI., which imposes a penalty for selling property at a fair on Sunday, a sale made on that day was held to be binding, although the seller was liable to pay the penalty.2 But this doctrine has long since been exploded; and it is now well settled, that a penalty implies a prohibition, though there be no prohibitory words in the statute; and that an agreement in violation of a statute prohibiting or enjoining an act absolutely, or only under a penalty, cannot be enforced.3 But a statute which subjects to a penalty "every pedler or other person going from place to place, carrying to sell, or exposing for sale any goods without license,"has been held not to render illegal a sale made by such pedler or other person without license, and the price of goods thus sold may be recovered by suit.4 The penalty is not attached to the sale, but to the exposing for sale. And there is no distinction between an act forbidden by law under a specified penalty, and one for which merely a specified penalty is provided.5
1 Bartlett v. Vinor, Carth. 252; Holman v. Johnson, 1 Cowp. 343; Mouys v. Leake, 8 T. R. 411; Kerrison v. Cole, 8 East, 231; Doe v. Pitcher, 6 Taunt. 359; Greenwood v. Bishop of London, 5 Taunt. 727; Newman v. Newman, 4 M. & S. 66; Wigg v. Shuttleworth, 13 East, 87; Ribbans v. Crickett, 1 Bos. & Pul. 264; Gallini v. Laborie, 5 T. R. 242; Law v. Hodson, 11 East, 300; Fales v. Mayberry, 2 Gall. 560; Hunt v. Knickerbacker, 5 Johns. 327; and Wheeler v. Russell, 17 Mass. 258, where all the cases are collected and discussed.
2 Conklin v. Roberts, 36 Conn. 461 (1870).
3 De Begnis v. Armistead, 10 Bing. 107; Fergusson v. Norman, 5 Bing. N. C. 80; Wetherell v. Jones, 3 B. & Ad. 221; Pellecat v. Angell, 2 C. M. & R. 311; Bell v. Quin, 2 Sandf. 146; Barton v. Port Jackson Plank Road, 17 Barb. 404; Aiken v. Blaisdell, 41 Vt. 655 (1869).
§ 752. Thus, it was held, that an action would not lie for breach of an agreement to dance at a certain theatre, it not being licensed, according to the provision of the statute of 10 George II.6 So, also, a note given for shingles, not surveyed, and not of the dimensions required by the statute forbidding the sale, is void.1 So, also, a contract is void, for the same reason, if made for lottery tickets;2 or for bank-notes, the sale or circulation of which is prohibited, under a penalty;3 or for the sale of spirituous liquors contrary to law;4 or for an insurance on naval stores, exported against an order in council; 5 or for the proceeds of a voyage in the slave-trade;6 or for the sale of a title to lands, previously adjudged to be illegal;7 or for insurance on a voyage, really intended in violation of the non-intercourse acts.8 A license to retail spirituous liquors, granted for one year, and for which the licensee has paid one dollar to the clerk of the board of public officers which issued it, as required by statute, is not a contract, and is annulled by the passage, within the year, of an act prohibiting all sales of intoxicating liquors, except in certain cases not within such a license.9 But sometimes contracts are prohibited for the mere protection of one of the parties against an undue advantage which the other party is supposed to possess over him. In such cases the parties are not regarded as being equally guilty; and so the rule is not deemed applicable, though both have violated the law.10 Cases of usury, of money paid to a creditor by a bankrupt to procure his signature to a certificate, contrary to statute, and money paid in violation of acts regulating lotteries, are mentioned as examples; in such cases the money paid could not be recovered.1
1 Comyns v. Boyer, Cro. Eliz. 485; Gremare v. Valon, 2 Camp. 144; 1 Black. Comm. 58. See Ex parte Dyster, 2 Rose, 319; Johnson v. Hudson, 11 East, 180.
2 Comyns v. Boyer, Cro. Eliz. 485. See also Ex parte Dyster, 2 Rose, 349; Gremare v. Valon, 2 Camp. 144.
3 Drury v. Defontaine, 1 Taunt. 136, in which Lord Mansfield said: "If any act is forbidden under a penalty, a contract to do it is now held void. That case [Comyns v. Boyer, Cro. Eliz. 485] is not now law." Bartlett v. Vinor, Carth. 252; Skinner, 322; De Begnis v. Armistead, 10 Bing. 110; Bensley v. Bignold, 5 B. & Al. 335; Nichols v. Ruggles, 3 Day, 145; Tyson v. Thomas, M'Clel. & Y. 119; Forster v. Taylor, 5 B. & Ad. 887; Little v. Poole, 9 B. & C. 192; Fennell v. Ridler, 5 B. & C. 406; s. c. 8 Dowl. & Ry. 204; Smith v. Sparrow, 4 Bing. 84; Kepner v. Keefer, 6 Watts, 231; Clark v. Protection Ins. Co., 1 Story, 119; Wheeler v. Russell, 17 Mass. 258; Pattee v. Greely, 13 Met. 284; Bell v. Quin, 2 Sandf. 146.
4 Jones v. Berry, 33 N. H. 209 (1856), citing and approving Williams v. Tappan, 3 Foster, 385; and Brackett v. Hoyt, 9 Foster, 264.
5 Aiken v. Blaisdell, 41 Vt. 655 (1869).
6 Gallini v. Laborie, 5 T. R. 242; The King v. Handy, 6 T. R. 286.