§ 766. This doctrine has always been admitted in cases where a part of the promise is void by the common law; but where a part of the promise is rendered void by the provisions of a statute, the whole contract was formerly held to be void. The dictum on which this rule was founded, and which has been so often repeated in the books, is ascribed to Lord Ho-bart, and is as follows: "The statute 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." 5 This, however, so far from being
Kerrison v. Cole, 8 East, 236; Collins v. Blantern, 2 Wils. 351; Mouys v. Leake, 8 T. R. 411; Van Dyck v. Van Beuren, 1 Johns. 362; Green v. Price, 13 M. & W. 695; Frazier v. Thompson, 2 Watts & Serg. 235.
1 Chamberlain v. Goldsmith, 2 Brownl. 281; Norton v. Syms, Moore, 856; Kerrison v. Cole, 8 East, 236; Mayfield v. Wadsley, 3 B. & C. 361.
2 Frazier v. Thompson, 2 Watts & Serg. 235; Woodruff v. Hinman, 11 Vt. 592.
3 Featherston v. Hutchinson, Cro. Eliz. 199.
4 Saratoga Co. Bank v. King, 44 N. Y. 87 (1870), explaining and distinguishing Leavitt v. Palmer, 3N. Y. 19; Curtis v. Leavitt, 15 N. Y. 14; Tracy v. Talmage, 14 N. Y. 188. A promissory note given for an account, part of which is illegal, is held to be wholly void. Widoe v. Webb, 20 Ohio St. 431 (1870), overruling any thing to the contrary in Doty v. Knox County Bank, 16 Ohio St. 133.
5 Lord Hobart, in Norton v. Simmes, Hobart, 14; Plowd. 68; 1 Brownl, a general dictum, applying to all agreements in contravention of any statute, was apparently limited to the statute of 23 Henry VI., then under consideration, which prescribes the form of obligation that an officer shall take from the person arrested, and expressly makes "any obligation, in other form, void."
§ 767. The modern cases, however, have abrogated this particular distinction between contracts which are void by the common law, and those which are rendered void by statute regulations; and the same rule is held to be applicable to both cases, namely, that wherever the contract is to perform binding and void acts, and they can be separated, it will be valid in respect to such acts as are not void, whether the other part be void by statute, or at the common law; provided, however, that if it be contrary to a statute, the whole of a contract be not rendered void by the express or implied provisions of the statute;1 as in the case of 23 Henry VI., in relation to bonds illegally taken by the sheriff. Thus, where a conveyance of an advowson, including the next presentation, was made for an entire sum, it was held to be good in respect to the advowson, and void as to the next presentation, for simony, which is prohibited by statute.2 So, also, there are several analogous cases, where certain provisions in a deed were in violation of the property tax act of 46 George III., and the mortmain act of 9 George II. ch. 36.3
§ 768. This rule applies to cases where part of an agreement is void by the statute of frauds. If the part of the contract which is rendered void by the statute be so connected with the part which is valid that the two cannot be separated, the whole is void. If they can be separated, the contract is valid, pro tanto.1 Thus, where a woman, upon the death of her husband, in consideration of being allowed to continue in the occupation of premises leased to him, promised, orally, to pay the rent which was already due, and, also, the rent which should subsequently accrue during the term of her occupation, it was held, that the agreement was entire, and that, as the promise as to one part was void by the statute of frauds, it could not stand good for the other.2 But where there was a verbal contract to sell a certain farm and dead stock, and growing wheat, at separate prices, it was held, that the contracts were distinct, and although the agreement as to the land was void, by the statute of frauds, because it was oral, yet the agreement as to the wheat and dead stock was binding.3
64; Moore, 856; Maleverer v. Redshaw, 1 Mod. 35. See also Shep. Touch. 374.
1 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; Gaskell v. King, 11 East, 165; Howe v. Synge, 15 East, 440; Tinckler v. Prentice, 4 Taunt. 549; Fuller v. Abbott, 4 Taunt. 105; Readshaw v. Bal-ders, 4 Taunt. 57; Bac. Abr. Covenant, G.; Officers, F.; Ellis on Debtor and Creditor, 377, note o.
2 Greenwood v. Bishop of London, 5 Taunt. 727; Newman v. Newman, 4M.&S. 66.
3 Wigg v. Shuttleworth, 13 East, 87; Gaskell v. King, 11 East, 165; Howe v. Synge, 15 East, 440; Tinckler v. Prentice, 4 Taunt. 549; Fuller V. Abbott, 4 Taunt. 105; Readshaw v. Balders, 4 Taunt. 57.
§ 769. We have already seen that when a contract is made to do an act prohibited by statute, no action can be maintained to enforce performance, or to obtain damages for a breach thereof. Nor if the claim be really founded on the contract, will an action on the case for damages be supported.4 But where a prohibited contract is made for the hire, use, or conveyance of property, or for services of any kind relating thereto, and the property is accordingly surrendered by the owner, although he could bring no action on the contract to recover the price, yet if the bailee wrongfully use or appropriate the property, and transcending his rights and powers under the contract, destroy or injure it, it seems that he would be liable in an action on the case for damages. But in such a case the injury should be susceptible of complete separation from the contract, for if the claim grow out of the contract it will not be good.1 Thus if a carrier of the mail should, contrary to the law of the United States, undertake to carry and deliver a packet of bank-notes to the person to whom it is addressed, no action could be maintained for the non-carriage according to the contract; but if the carrier should refuse to redeliver the packet to the owner, he would be liable therefor in an action of trover.2 But although the rule is well settled, that where the plaintiff cannot support his demand without relying on an unlawful agreement, he cannot recover,3 yet it is sometimes very difficult of application, and in several cases which have occurred in this country, it has been differently applied to similar facts. The question in these cases was whether, if a