Illegal term in contract

does not necessarily vitiate

the whole contract.

Cave, J., said in Hammond v. Hocking (1884), 12 Q. B. D. 291, at p. 292: "The question arises on s. 7 of the Act, which was passed for the protection of the borrower from oppression, and, while we construe the Act so as to produce the effect intended by the Legislature, we ought not, in construing it, to give way to needless technicalities, because, if we do so, we shall run the risk of interfering with honest transactions, and also, by rendering bills of sale doubtful and bad securities, make the position of the borrower worse than it was before the Act was passed." It is doubtful whether the last consideration is for the Courts, except so far as it is adopted to carry out the intention of the Legislature; and it may be plausibly argued that the inevitable result of the Act was to raise the rate of interest and increase the difficulty of borrowing on the security of chattels.

But if the contract in question is not merely for the performance of a single act, but involves the doing of several things, some of which are legal and some prohibited by statute, the question has been raised as to whether the whole contract would be void, or merely that part of it the performance of which the statute prohibits. It appears to have been laid down in some early cases that if "any of the covenants be void by statute, then the bond is void in toto," (p) but it seems that the true rule is that if the contract is for the performance of several things, one of which is prohibited by statute, it is not void in toto, unless the prohibiting statute expressly enacts that all instruments containing any matter contrary thereto shall be void, provided the good part be separable from, and not dependent upon, the bad part.(g) This view is supported by the recent decision of the House of Lords in Netherseal Co. v. Bourne (1889), 14 App. Cas. 228, where it was held that a contract, not illegal as a whole, but containing a stipulation for illegal deductions

(p) See notes to Collins v. Blantern (1767), 1 Smith L. C. (9th ed.) at p. 416. (q) Ibid. at p. 417; and see Mouys v. Leake (1799), 8 T. R. 411, and Kerrison v. Cole (1807), 8 East 231.

from wages, is not void as a whole, but that the illegal stipulations are unenforceable. If, however, a contract be made on several considerations, one of which is prohibited by statute, the whole will be void, because every part of a contract is affected by the illegality of any part of its consideration.(?)

In Valentini v. Canali (1889), 24 Q. B. D. 166, a man claimed cancellation of a contract and repayment of the sum paid by him on the contract, which was for his benefit, on the ground that he was an infant when he entered into the contract, and it was contended that, inasmuch as the Infants' Relief Act, 1874, s. 1, made certain contracts 37 & 38 Vict. by infants void, the infant was entitled to recover all c. 62. sums paid by him under the contract as if the consideration for the contract had wholly failed. But the Court rejected the argument, and Lord Coleridge said: "No doubt the words of s. 1 of the Infants' Relief Act are strong and general, but a reasonable construction ought to be put upon them. The construction which has been contended for on hehalf of the plaintiff would involve a violation of natural justice. The object of the

statute would seem to have been to restore the law for the protection of infants, upon which judicial decisions were considered to have imposed qualifications. The Legislature never intended, in making provisions for this purpose, to sanction a cruel injustice."

(r) Per Tindal, C.J., in Shackell v. Rosier (1836), 2 Bing. N. C. 634, at p. 646.

of enabling

1. MANY statutes have been passed to enable something to Classification. be done which was previously forbidden or not distinctly Acts. authorized by law, with or without prescribing the way in which it is to be done. Such statutes are passed for a variety of purposes. In order to discuss the rules which regulate the effect of statutes of this class, we may conveniently consider the question under the following heads, viz. :—

(1) Effect of statutes which prescribe or regulate the way in which something is to be done.

(2) Effect of statutes which grant to private individuals the powers for carrying out some public work. (3) Effect of statutes which enable bylaws and rules to be made.

(4) Effect of statutes which empower the Crown to do something, not comprised within the prerogative.

(5) Effect of enabling Acts, when obligatory and when permissive.

sary for its

2. One of the first principles of law with regard to Grant of a the effect of an enabling Act is that, if the Legislature grant of the right involves enables something to be done, it gives power at the same means necestime, by necessary implication, to do everything which is exercise. absolutely indispensable for the purpose of carrying out the purpose in view, "on the principle," as Parke, B., said in Clarence Rail. Co. v. Great North. Rail. Co. (1845), 13 M. & W. 706, at p. 721, "that ubi aliquid conceditur, conceditur etiam id sine quo res ipsa non esse potest." "The general rule under this head of law is, (a) that where the Legislature gives power to a public body to do anything of a public character, the Legislature means also to give to the public body all rights without which the power would be wholly unavailable, although such a meaning cannot be implied in relation to circumstances arising accidentally only." This rule was applied in the case cited by holding that a sanitary authority, which by statute had authority as against landowners to construct

(a) Per Brett, L.J., in Re Dudley Corporation (1882), 8 Q. B. D. at p. 93.

sewers, and a duty in favour of landowners to maintain them, were impliedly entitled to subjacent (but not to lateral) support to the sewers from lands, without purchasing the subjacent soil or any easement of support, but subject to the obligation of making compensation 38 & 39 Vict. under s. 308 of the Public Health Act, 1875.

c. 55.

Expressio

unius est exclu

sio alterius.

Therefore, as Fry, J., said in Mayor, &c., of Yarmouth v. Simmons (1879), 10 Ch. D. 527, "when the Legislature clearly and distinctly authorize the doing of a thing which is physically inconsistent with the continuance of an existing right, the right is gone, (b) because the thing cannot be done without abrogating the right." Thus, the power to make bylaws involves the power of enforcing them.(c) In Doyle v. Falconer (1866), 4 Moore P. C. N. S. 203, it appeared that the Legislative Assembly of the island of Dominica was constituted by a royal proclamation (which was there equivalent to an Act of Parliament), but had no special power given to it to punish members for contempt. It was argued, however, that, in accordance with the abovementioned maxim, such a power was indispensable to its existence, but the Court held that it was not. "It is necessary," said the Judicial Committee (p. 219), "to distinguish between a power to punish for a contempt and a power to remove any obstruction offered to the deliberations of a legislative body, which last power is necessary for selfpreservation. The right to remove for self-security is one thing, the right to inflict punishment is another. The former is all that is warranted by the legal maxim which has been cited, but the latter is not its legitimate consequence."

Trading corporations such as railway, canal, and dock companies are not treated as public bodies within the meaning of this rule, at any rate so far as refers to their compulsory powers of taking land.(d)

Another general rule with regard to the effect of an

(b) As to rights being taken away by implication, vide ante, p. 135. (c) Vide post, pp. 306 et sqq.

(d) Post, Part IV. ch. i.