Kennard & Co. v. Kearney

The Court declined nonsuiting the plaintiffs, but charged the jury as follows. In this case it appears that the money was advanced by the plaintiffs to the defendant on Sunday the 20th August, 1786. Upon such a circumstance the law operates to annul the contract. 1 Del.Laws 183, 2 Del.Laws 1209. It is declared by Holt, C.J., in Carth. 252 that “every contract made for or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there be no prohibitory words in the statute.”

Therefore etc., verdict for defendant.

*486[Note.] Admitting this contract to have been illegal and void, yet it may be questioned whether the plaintiff should not have recovered, because the count was in disaffirmance of the contract and is the one always used for that purpose, 1 Selw. 105, 7 Term 535,1 Bos. & P. 296,1 Bos. & P. 3. In Drury v. Defontaine, 1 Taun. 131, it was decided that contracts are not void if proved to be made on Sunday. But note that our Act inflicts a penalty which the court in 1 Taun. 136 acknowledge alters the case. Gould’s Esp.Ev. 539.