within which a penalty could be enforced is long passed, and if a verdict were given against the defendant, his payment of that verdict would not subject him to an action, because his offence was not the payment, but the promise. To make the payment an offence, it must have been made "in order or with a view to promote," &c., that is, a payment before the election. It is agreed upon all sides that the third defence is not maintainable. I say nothing, therefore, as to that defence. My observations are applicable to the second defence; and, for the reasons which I have stated, I think that the second defence is also bad, and that the demurrer to it should be allowed. M. T. 1858. v. DILLON. LEFROY, C. J. In this case I concur with my Brothers PERRIN and O'BRIEN, and I have the misfortune to differ from my Brother CRAMPTON ; and unquestionably if the effect of our decision were to be such as my Brother CRAMPTON adverts to, I should be very sorry to be a party to such a decision. If a person were to go to a hotel during an election, and, being a friend of, or an advocate for, or anxious about, the return of a particular candidate, were to obtain from the hotel-keeper accommodation for himself, such as lodging, food and other matters of that kind, our present decision does not go the length of holding that the hotel-keeper shall not recover from such person the amount of his bill. But, in my mind, it is only necessary to read a few words of this Act of Parliament, and of the second defence to this action, being the first to which the demurrer has been taken, in order to show that the present is not such a case as has been suggested, and that the fault of the plaintiff here was in not traversing that which is the point and gist of this case, namely, the purpose and object for which the goods were supplied, and by alleging that he, the plaintiff, was not a party to such purpose and object, to take himself out of the provisions of the Act, instead of appearing, as he does upon these pleadings, to be the person who supplied the goods for the very purpose and object forbidden by the Act. The 24th section is in these terms:-"No person shall pay or agree to pay any expenses O'BRIEN v. DILLON. M. T. 1858. "of any election, or any sum of money whatever, in order or with Queen's Bench 66 a view to procure or promote the election of any person to serve "in Parliament, save to the candidate at such election, or to or "under the authority of the election auditor, other than as excepted "and allowed by this Act:" and this defence does not set up an independent contract or agreement in answer to the plaintiff's claim, but it is pleaded in the very terms of the section which I have read, and negatives the two savings mentioned in that section, namely, payment or agreement to pay to the candidate, or through the election auditor. The case therefore is reduced to the single point, whether a man shall be compelled to pay a sum of money, which, if he were to pay of his own accord, would render him guilty of an offence against the statute, and liable to a penalty? Now I am not put to prove that, if a statute inflicts a penalty upon the doing of an act, it thereby prohibts the act and renders it illegal; because that principle was admittted upon the argument, and the authorities which have been cited by my Brother O'BRIEN are decisive upon that point; he has gone as far back as Lord Holt, and has followed that authority with others, proving that it is a sufficient demonstration of the legislative purpose that a man shall not violate an Act of Parliament, if the Act imposes a penalty upon such violation of it. Well then this defence avers, and the demurrer admits, such acts as would subject the party to a penalty; and we have thus obtained all that is necessary to constitute a violation of the Act; and there is no further authority than the cases which have been cited by my Brother O'BRIEN necessary, to prove that a party to a violation of an Act of Parliament cannot maintain an action for a matter which is a violation of the Act. This brings me to the terms of the pleadings. This defence is, that the several matters which constitute the plaintiff's cause of action were furnished and supplied, and the moneys expended, in order to promote the election of a particular candidate, who is named, and it negatives that they were furnished to the candidate, or expended through the medium of, or with any intimation to, the election auditor. This defence, therefore, negatives the only two exceptions which would exempt the plaintiff from the operation of this section, and he is thus deprived of the protection which he might otherwise have acquired. The plaintiff, therefore, must be taken to have been guilty of every illegal act which is averred in this defence, because, by demurring, he admits the facts to be as they are alleged, and he has not thought fit to traverse these averments, nor to reply that these matters were supplied, and moneys expended, for the accommodation of the defendant himself. When, therefore, the plaintiff admits all these facts by the demurrer, how can he be heard to evade the Act, by saying at the Bar that these matters were not so furnished, nor moneys expended as alleged in this defence; but that, on the contrary, they were merely furnished and expended by him as a hotel-keeper, for the accommodation of the defendant himself? That argument, which is the only one by which the plaintiff could by possibility take himself out of the operation of the Act, is not now open to him; it is inconsistent with all that the demurrer admits. I cannot add anything further to the clear and satisfactory exposition of the law of the case, and of the authorities bearing upon it, by my Brother O'BRIEN; it only remains for me to justify my concurrence with him, by showing in general terms that the very words of the Act of Parliament coincide exactly with this defence, which is thus brought directly and distinctly within the terms of the Act; and if the Act is to have any effect whatever, I see no other way in which it can be rendered available than by a defence precisely in the terms of that which is now before the Court. I come to this conclusion not simply upon the ground that the plaint seeks to enforce a proceeding forbidden by the Act, but also because it goes further, and calls upon a Court of Justice to give a judgment upon which execution may issue, when the Act says that if the defendant does pay he shall incur a penalty. A Court of Justice connot assist such a violation of the Act, and I feel bound, therefore, as to the second defence (though with great deference to my Brother CRAMPTON), to concur with my Brothers PERRIN and O'BRIEN. As to the third defence, we are all of opinion that the demurrer must be allowed. Demurrer to the second defence overruled-to the third M. T. 1858. บ. DILLON. T. T. 1859. Common Pleas. May 27, 30. PERROTT v. WILLIS & Co. (Common Pleas). June 1, 2, 11. Two firms, the THIS was an action for goods sold and delivered, work and labour Messrs. S. and the Messrs. done, and money had and received. The defences denied the W., being joint ship, the former ordered goods from P., an ironmonger, for the P. which were The plaintiff, an ironmonger, residing in the city of Cork, had received orders from the Messrs. Scott, merchants and ship agents, use of the ship, residing in Queenstown, for supplying the ship "Beechworth" with goods and requisite stores; which he accordingly did supply, in the month of April and May 1857, and which were the subject-matter of the present action. The ship "Beechworth" had been stranded near Dungarvan, and was there purchased by the defendants, on in the vessel. the joint account of themselves and the Messrs. Scott; but, at the were interested About the time that the time the goods were supplied, the Messrs. Scott were the apparent goods were ordered, the owners of the ship. The Messrs. Scott subsequently became insolMessrs. W. were registered vent, and a composition deed was executed, under which their property was assigned to trustees. The Messrs. Willis were parties and, subse- to this deed, the Messrs. Scott, who had been jointly interested as sole owners of the ship; quently, in their accounts with them in several ships, being, at the time of their insolvency, the Messrs. W. had given the indebted to them to a considerable amount; and the plaintiff also Messrs. S. cre dit for payments in dis became a party to the composition deed; and his signature to the charge of P.'s deed was subsequent to the signature of the Messrs. Willis (the demand, as sumed to have been, but not actually, made by the latter. To an action brought by P. against the Messrs. W., for goods sold, &c.-Held, that the fact of the contract having been made with the Messrs. S. did not entitle the defendant to a nonsuit, the Messrs. W. being, at the time the goods were ordered, in the character of undisclosed principals, although the parties were joint owners, and not principal and agent, and although there was no express authority given, the goods having been ordered for the mutual benefit of both. Held also, that the alteration in the accounts, in favour of the Messrs. S., did not affect the rights of P. as against the Messrs. W., having been made without his knowledge or consent. Quare-Whether such a defence should not have been specially pleaded? Semble-The registered owner of a ship is not, of necessity, as such, liable for goods ordered by the master of the ship. Common Pleas. PERROTT บ. WILLIS. latter being No. 30, and the former No. 50 upon the deed), and T. T. 1859. under it accepted composition bills for payment of his demand. Up to the time of executing the composition deed, the plaintiff was not aware that the defendants were owners of the vessel (although he had an indefinite idea that some other parties besides the Messrs. Scott were the owners); and it was not until after the bills were dishonored that he discovered that fact. The defendants had made a declaration of ownership of the vessel, and were registered as sole owners, in the month of April 1857, about the time that the plaintiff supplied the goods. It was also proved that other parties, who had supplied the vessel with stores, to the order of the Messrs. Scott, had been paid part of their demands by the Messrs. Willis; but it appeared that those payments had been made upon protest. This case was tried at the Cork Spring Assizes of 1859, and the foregoing facts were given in evidence in support of the plaintiff's case. At the close of the plaintiff's case, the defendants' Counsel called for a nonsuit, upon the grounds that the fact of the defendants being registered owners did not of itself render them liable, the contract having been entered into between the plaintiff and the Messrs. Scott; which his Lordship having refused, the defendants made the following case:-That the Messrs. Scott and the Messrs. Willis had been connected in business for several years, and that the latter firm had purchased the "Beechworth," and were the sole registered owners, holding one moiety for their own benefit, and the other for the benefit of the Messrs. Scott, which the defendants purchased after the insolvency of the Messrs. Scott, but holding the property in the entire ship as a security for advances made by them in their partnership with the Messrs. Scott. That the goods had been supplied to the order of the Messrs. Scott, at Queenstown, and that the defendants had supplied the vessel with other goods from Liverpool, where they resided; and that the defendants had from time to time balanced accounts with the Messrs. Scott, including, amongst other items, the plaintiff's demand, with half of which they had debited themselves, and with the other half of which they had credited the Messrs. |