(d) Moyce v. Newington, 4 Q. B. D. 32; 48 L. J. (Q. B.) 125. See also Attenborough v. St. Katharine's Dock Co., 3 C. P. D. 450; Babcock v. Lawson, 4 Q. B. D. 394; 5 lb. 284; 48 L. J. (Q. B.) 524; 49 lb. 408.
(e) Ante, p. *156.
(f) See the remarks of Cockburn, C. J., in Moyce v. Newington, 4 Q. B. D. 82, 35; 48 L. J. (Q. B.) 125, 127; and in Babcock v. Lawson, 4 Q. B. D. 394, 100, 401; 48 L. J. (Q. B.) 524, 528.
(g) 3 B. & Ad. (23 E. C. L. R.) 221.
(h) Cunard v. Hyde, 2 E. & E. (105 E. C. L. E.) 1, 29 L. J. (Q. B.) 6. These provisions have been repealed by 39 & 40 Vict. c. 36, s. 2S8. See now as to deck cargo, 39 & 40 Vict. c. 80, s. 24.
(i) Carth. 252; Cope v. Rowlands, 2 M. & W. 157; Cundell v. Dawson, 4 C. B. (56 E. C L. R.) 396.
1 Vining v. Bricker, 14 Ohio St. 331; Bemis v. Becker, 1 Kan. 226. When a contract to do something which is prohibited by law has been executed, the party in possession of the profits arising out of the unlawful acts, will not be allowed to set up the illegality of the subject-matter of the contract as a defence to an action of account thereon : Gilliam v. Brown, 43 Miss. 641. As to the ratification of fraudulent contract, see Pearsoll v. Chapin, 44 Pa. St. 9; Cobb v. Hatfield, 46 N. Y. 533.-s.
According to this principle, where a statute reciting the inconvenience which happened by watermen taking apprentices before they were housekeepers, enacted that it should not be lawful for any waterman to take or keep any apprentice unless he should be the occupier of some house or tenement, wherein to lodge the said apprentice and himself, and that he should keep such apprentice in the same house or tenement wherein he himself should lodge, on pain of forfeiting £10 for every offence, the Court of King's Bench decided that any contract to take an apprentice, entered into by such waterman not being an occupier of some house or tenement, as required by the Act, was prohibited; and, consequently, that *a pauper who had bound himself by indenture to serve such a waterman unprovided with the required accommodation, and had served under it as apprentice, gained no settlement by such binding and service (k). For the same reason, a statute having required that with all coals delivered in London above a certain quantity, the seller should deliver a certain ticket, and in case of not delivering the ticket, should for every offence forfeit a sum not exceeding £20, the seller of a quantity of coals, who had omitted to deliver a ticket with them to his customer, was held not to be entitled to sue him for the price (I). The statute 6 Anne, c. 16, requires all brokers within the City of London to be admitted by the Court of Mayor and Aldermen, and provides that if any one shall act as broker, not having been so admitted, he shall forfeit to the use of the Mayor, Aldermen, and Citizens £25 for every offence (m). It has been decided that a broker not so admitted cannot recover Lis commission for work done by him as a broker (n). In *the case of a pawnbroker who had not made entries required by the Pawnbrokers' Act, it was held that he had not even a lien on the goods whereon he had advanced money, although the statute merely provided that this neglect should subject him to a penalty (0). And an agreement made between a licensed victualler, who kept an hotel, to let the cellar in his house, wherein another was to retail liquors without any license, was held void, although the statute requiring the license merely enacted that any person who should sell excisable liquor by retail without a license, should forfeit from £5 to £20 (p). So, too, where stat. 36 Geo. III. c. 86 (q), to prevent abuses and frauds in the packing, weight, and sale of butter, enacted in s. 2, that on every vessel for packing butter the maker's name and the exact weight of the vessel should be branded, and imposed a fine on the maker in default; and in s. 3, enacted that every dairyman, farmer, etc, who should pack any butter for sale, should pack the same in vessels properly branded and should mark his name on different parts of the vessel therein described, and on the butter contained in such *vessel, on penalty of forfeiting for every default £5: it was held, that a sale of butter in vessels not properly branded was prohibited under the Act, and consequently that the contract of sale was void, and the plaintiff in an action for the price of butter sold by him in such vessels could not recover (r). The cases decided upon this principle are very numerous, but these instances have been selected because, while they illustrate the subject, they at the same time show how very many ordinary affairs, if not transacted in the manner prescribed by law, may be forbidden no otherwise than by the imposition of a penalty.1
(k) King v. Inhabitants of Gravesend, 3 B. & Ad. (23 E. C. L. E.) 240.
(I) Cundell v. Dawson, 4 C. B. (56 E. C. L R.) 376.
(m) This portion of 6 Anne, c. 16, is repealed by 57 Geo. 3, c. lx, s. 2, and a penalty of £100 substituted. But after the 29th of Sept., 1886, the admission of brokers by the Court of Mayor and Aldermen will be no longer necessary.
See 47 & 48 Vict. c. 3 (London Brokers Relief Act, 1884), s. 2. S. 3 of the same Act repeals as from the same date the penalty of £100.
(n) Cope v. Rowlands, 2 M. & W. 149; Smith v. Lindo, 27 L. J. (C. P.) 196; 4 C. B. (N. S.) (93 E. C. L. R.) 395; 27 L. J. (C. P.) 335; 5 C. B. (N. S.) (94 E. C. L. R.) 587, in Ex. Ch.
(o) Fergusson v. Norman, 5 Bing. N. C. (35 E. C. L. R.) 76.
(p) Ritchie v. Smith, 6 C. B. (60 E. C. L. R.) 462.
(q) Now repealed by 7 & 8 Vict. c. 48. 272
Before leaving this subject, it will be convenient to advert to a distinction, in cases of this sort, between acts which are prohibited for the public advantage, and such as are prohibited for purposes of revenue; for it has been sometimes thought, that, in the latter class of instances, the only consequence is to make the person committing such acts liable to the penalty, and not to make his contract unavailable (s). But, it may safely be laid down, notwithstanding some dicta apparently to the contrary, that, if the contract be rendered illegal, it can make no difference, in point of law, whether the statute which makes it so had in *view the protection of the revenue or any other object (t). The sole question is whether the statute means to prohibit the contract. Thus, where the 25th and 26th sections of the Excise License Act, 6 Geo. IV. c. 81, subject to penalties any manufacturer of, or dealer in, or seller of tobacco, who shall not have his name painted on his entered premises in manner therein mentioned, or who shall manufacture, deal in, retail, or sell tobacco, without the license required for that purpose, it was considered that these enactments do not avoid a contract of sale of tobacco made by a manufacturer or dealer who has not complied with the requisites of these sections: their effect is merely to impose a penalty on the offending party for the benefit of the revenue. "The question is," said Alderson, B.-"Does the Legislature mean to prohibit the act done, or not? If it does, whether it be for the purposes of revenue or otherwise, then the doing of the act is a breach of the law, and no action can arise out of it. But here the Legislature has merely said, that where a party carries on the trade or business of a dealer in or seller of tobacco, he shall be liable to a certain penalty if the house in which he carries on the business shall not have his name, etc, painted on it, in letters publicly visible and legible, and at least an inch long, and so forth. He is liable to the penalty, therefore, by *carrying on the trade in a house in which these requisites are not complied with; and there is no addition to his criminality if he makes fifty contracts for the sale of tobacco in such a house. It seems to me, therefore, that there is nothing in the Act of Parliament to prohibit every act of sale, but that its only effect is, to impose a penalty for the purpose of the revenue on the carrying on of the trade without complying with its requisites" (u).