done, and the objection in this case must prevail, not for the sake of the defendant, but for that of the public. HOLROYD J. The principle applicable to the present case, is fully established by many decided authorities. There does not appear to me to be any sound distinction between those cases where a statute requires a thing to be done, and where it prohibits it from being done. Here the act requires the printer's name to appear on the book, which is in effect the same, as if it prohibited him from printing any work without affixing his name to it. Supposing, however, that there is a distinction between those cases where a thing is prohibited generally, and where it is prohibited only under a penalty, in this case it is not merely prohibited under a penalty, for here the act expressly requires, that the printer's name shall be printed, which is the same thing had expressly prohibited him from printing a work without doing so. The rule therefore must be absolute. BEST J. The distinction between mala prohibita and mala in se has been long since exploded. It was not founded upon any sound principle, for it is equally unfit, that a man should be allowed to take advantage of what the law says he ought not to do, whether the thing be prohibited, because it is against good morals, or whether it be prohibited, because it is against the interest of the state. The object of the 39 G. 3. was to provide the most effectual means of discovering the authors of every publication, in order that they might be made answerable for the contents, and for that purpose, it has directed, that all the parties concerned in bringing the publication into the world, whether printers or 1822. BENSLEY against BIGNOLD. 1822. BENSLEY against BIGNOLD. or publishers, shall be made known. Here, the printer's name has not been printed upon the publication as required by the act of parliament, and that being so, there is no legal contract on which an action can be founded, inasmuch as the thing was done in direct violation of the law. The case of Marchant v. Evans is precisely in point. I am of opinion, therefore, that this pamphlet having been sent out without the name of the printer, he cannot recover for the labour, or for the materials used in printing it. The rule must therefore be made absolute. Rule absolute. A parcel con banker's notes, SLEAT and Others against FAGG. taining country DECLARATION stated, that, in consideration that the plaintiffs, at the request of the defendant, had caused to be delivered to the defendant a parcel, con of the value of 1300l. and ad dressed to their clerk, in order to conceal the nature of its contents, was carrier, without any notice of taining promissory notes for payment of money, country bank notes, and other notes, of the value of 3000l., and delivered to the certain promissory notes by the plaintiffs, for the payment of money on demand to the bearer thereof, to be its value, to be forwarded by defendant for plaintiffs, towards Christchurch, in the county of Hants, for a certain reward to defendant in that behalf, defendant undertook to forward carried by a mail coach, and was accepted by him to be so carried. The parcel was such parcel towards Christchurch, by a certain coach called The Pool Mail. Breach, that defendant did not sent by a different coach, and was lost. The carriers had previously given notice forward the parcel by the Pool mail, but, on the con that they would not be answerable for any parcel above 57. in value, if lost or damaged, unless an insurance were paid. No insurance having been paid in this case, Held, notwithstanding that the carrier was responsible for the loss. trary, trary, caused the parcel to be sent by a certain other coach, whereby the parcel and contents were lost to plaintiff. Plea, non-assumpsit. At the trial, before Abbott C. J., at the London sittings after last Hilary term, the following appeared to be the facts of the case. The plaintiffs were bankers, resident at Christchurch, in the county of Hants, and issued promissory notes, payable at their agents' in London, Messrs. Rogers, Towgood and Co. The latter, for a considerable time, had been in the habit of sending, on the first of every month, a parcel, containing a large quantity of notes, paid by them on account of the plaintiffs during the preceding month, addressed to Mr. Angier, Christchurch, Hants, he then being the head clerk in the plaintiffs' banking house. These parcels were sent to the office of the defendant, at the Bell and Crown, Holborn, for the purpose of being forwarded by them to Christchurch by the Pool mail, and were not insured as parcels of value. On the 1st December, 1820, Rogers, Towgood and Co. delivered at the office of the defendants in Holborn, a brown paper parcel, containing notes of the plaintiff to the amount of 1300l. It was addressed to "R. Angier, Christchurch, Hants, per mail," and the defendant's book-keeper booked it to go by the mail. It was in fact sent by a Southampton light coach, which went from the same office at half past four in the evening. It was the practice at the office to send all parcels addressed to Christchurch, which arrived at the office before that hour, by the light coach, and the defendants had so sent, for several preceding months, the parcels which had been addressed to Mr. Angier, and which had been directed to go by the mail. The Southampton light coach left the inn in Holborn at half past four; it stop 1822. SLEAT against FAGG. ped 1822. SLEAT against FAGG. ped for supper and other purposes on the road; and at Southampton the parcels are taken out to be ready when the mail arrives. The mail leaves the Bell and Crown in Holborn at half past seven in the evening, and arrives at Southampton about twenty minutes after the light coach, and then any parcels coming by the other coach, addressed to Christchurch, are put into the mail, and forwarded to Ringwood, where such parcels are then put into a mail-cart, and conveyed to Christchurch. Neither of these coaches went the whole way from London to Christchurch. The price of the carriage of such parcels was the same by both coaches. It appeared that the defendant had given notice that he would not be answerable for any article exceeding 5l. value, if lost, stolen, or damaged, unless the article were insured; and the plaintiffs were cognizant of that notice. Where an article was insured as a parcel of value, it was the practice in the defendant's office to place it while there in an iron chest, and upon loading the coach, to place it in the boot of the coach, with the heavy luggage over it, so as that it could not be taken out without removing the superincumbent articles. The parcel in question not having been insured as a parcel of value, was placed under the seat in the inside of the coach, and was lost. The defendant's book-keeper stated that he had always supposed the parcels sent to the plaintiffs to contain some monthly publication. On that day on which the parcel in question was lost, a person who booked himself late in the evening, in the name of Jones, for Southampton, as an inside passenger, and who was present when the coach was loading, and heard the names of the persons to whom the different parcels were addressed called over, went by the coach as far as Farnham, saying that he meant to sleep there, but, upon enquiry, no inform ation could afterwards be obtained there respecting him, and there was very little doubt that he was the person who had stolen the parcel. On the following morning, some of the notes, to the amount of 10501., were presented for payment at Messrs. Rogers, Towgood and Co., and paid. The defendant, W. G. Rogers and C. Blayney were the proprietors of the Pool mail; the defendant and two other different persons were the proprietors of the Southampton light coach. Upon these facts the Lord Chief Justice was of opinion, that if there had been a mail-coach travelling the whole way from London to Christchurch, the plaintiffs would have been entitled to recover; but the fact being otherwise, he left it to the jury to consider whether the risk was increased by sending the parcel by the light-coach instead of the mai!; telling them, if they were of opinion that the risk of loss was increased by sending the parcel by the substituted mode of conveyance, they should then find their verdict for the plaintiffs. A verdict was found for the plaintiffs for 1050l. A rule nisi having been obtained in last Michaelmas term for a new trial, on the ground that the carrier was in this case protected by the terms of his notice, the parcel not having been insured. Scarlett, Marryat, and F. Pollock, now shewed cause. The defendant is not protected by his notice; for this is a case not of negligence in the course of the performing contract, but of non-performance of the contract. The defendant contracted to send by one coach, and in fact he sent by another. If a purchaser of goods directs the vendor to send them by a particular ship, and he sends them by another, and they are lost, 1822. SLEAT against FAGG. the |