not contemplated by the contract, in the performance of something to be done on his part."* So on the same principle, in Pennsylvania, it has been held that a party who erects an obstruction in a navigable stream, and thereby occasions an injury to another, cannot, in an action for such injury, set up as a defence that the plaintiff was unlawfully engaged in worldly employment on Sunday, when the injury occurred. The law relating to the observance of the Sabbath defines a duty of the citizen to the State, and to the State only. "We should," says the Supreme Court of Pennsylvania, "work a confusion of relations, and lend a very doubtful assistance to morality, if we should allow one offender against the law to the injury of another, to set off against the plaintiff that he, too, is a public offender." We have already had occasion to call attention to the rule that where an instrument contains a clause or provision in contravention of a statute, it renders the whole instrument invalid. I may here remark that the rule is in its nature arbitrary, and calculated to work injustice, and that it appears to be subject to exceptions. So, where there are different and independent covenants in the same instrument, part may be good and part bad. So, a personal covenant to pay a rent charge may be good, and the security of the rent charge on the living may be bad. Cumulative Remedies and Penalties.-Where a precise remedy for the violation of a right is provided by statute, it often becomes a matter of interest to know whether the statutory remedy is the only one that can be had, or whether it is to be regarded as merely cumulative, the party aggrieved having also a right to resort to his redress for the injury sustained, at common law, or independently of the statute.(a) In regard to *Wetherell v. Jones, 3 Barn. & Ad. 221. Mouys v. Leake, 8 T. R. 411; Kerrison v. Cole, 8 East, 234; Dwarris, p. 638. See Chitty on Contracts, p. 536. (a) When Statutory Remedies Exclusive.-For cases holding such remedies exclusive, see Camden v. Allen, 2 Dutch. 398 (taxes); Victory v. Fitzpatrick, 8 Ind. 281 (Eminent domain); McCormack v. Terre Haute, &c. R. R. 9 Ind. 283 (Eminent domain). A statute prescribing a method of investigating elections takes away the common-law remedy in cases covered by it. Commonwealth v. Garrigues, 28 Penn. St. 9. When a pecuniary obligation is created by statute, and a remedy is given by this we have already noticed the rule that where a statute does not vest a right in a person, but only prohibits the doing of some act under a penalty, in such a case the party violating the statute is liable to the penalty only; but that where a right of property is vested by virtue of the statute, it may be vindicated by the common law, unless the statute confines the remedy to the penalty. So, where a statute vested in a town the right of disposing of the privilege of taking alewives in a river within the limits of the town, and enacted that persons obstructing the passage of the fish should be subject to a penalty, it was held that the remedy prescribed by the statute was cumulative, and that a common-law action on the case would lie, by the vendee of the privilege against any person obstructing the pas sage of the fish.* So, too, in England, under the original copyright statute, 8 Anne, c. 19, it was held that the penalties and forfeitures imposed by the act were merely cumulative remedies, and that a common-law action on the case would lie for an infringement of the owner's right of property. So also in New York, in the act giving R. R. Livingston an exclusive right to the navigation of the Hudson River, the statutory forfeitures imposed on parties infringing his privilege were held to be cumulative, and an injunction was sustained. We have also noticed the rule, that if a statute gives a remedy in the affirmative, without a negative expressed or implied, for a matter which was actionable at the common law, the party may sue. at the common law as well as upon the statute; for this does not take away the common-law remedy. So, * Ante, p. 76; Barden v. Croker, 10 Pick. 383, 389. The regulation and preservation of the alewive fishery, has been an object of the particular attention of the legislature in Massachusetts; see Coolidge v. Williams, 4 Mass. R. 144, where it is said to be a part of the common law of the State, that a town may appropriate the fish in its waters, if not ap propriated by the Legislature. Beckford v. Hood, 7 T. R. 620, cited with approbation in Barden v. Croker, 10 Pick. 383. Livingston v. Van Ingen, 9 J. R. 506, 562, 571. The acts creating the monopoly were deemed by the Supreme Court of the United States to be unconstitutional, so far as they conflicted with the general coasting system of the United States, Gibbons v. Ogden, 9 Wheat, 1. Com. Dig. Action upon Statute C. 2 Inst. 200. Ante, p. 75. means of a peculiar proceeding, the language indicating an intent that such remedy and no other shall be pursued, the statutory remedy is exclusive. St. Pancras v. Batterbury, 2 C. B. (N. S.) 471. where the Legislature authorized the erection of a mill-dam, and provided a summary mode of appraising the damage of those who might be injured by it, it was held that the remedy was merely cumulative, and did not take away the common-law right of action on the case for the injury; and stress was laid on the fact that the act was not couched in negative terms.* But on the other hand, it is a rule of great importance, and frequently acted upon, that where by a statute a new right is given and a specific remedy provided, or a new power and also the means of executing it are provided by statute, the power can be executed and the right vindicated in no other way than that prescribed by the statute. So, an indebitatus assumpsit will not lie for the benefit derived from a sewer, where the law has provided for its construction by tax or assessment. So, where a party by subscribing an act of association, as for the purpose of making a road or building a bridge, simply engages to become the proprietor of a certain number of shares, without any distinct or specific promise to pay such assessments as may be imposed, the only remedy in case of non-payment is by a sale of the shares to raise the sum assessed on them, upon the ground that the corporation has no power at common law to make any assessments of this kind, and that, when a statute gives a new power and at the same time provides a means of executing it, those who claim the power can execute it in no other way. Where on the other hand there is an express promise to pay the assessment; then the party is answerable to the corporation on the promise, and an action will lie. So in Massachusetts when * Crittenden v. Wilson, 5 Cowen, 165. City of Boston v. Shaw, 1 Met. 130, 138, In Massachusetts, see New Bedford and Bridgewater Turnpike Co. v. Adams, 8 Mass. 138; Andover and Medford Turnpike Co. v. Gould, 6 Mass. 40; Worcester Turnpike Co. v. Willard, 5 Mass. 80. In Franklin Glass Co. v. White, 14 Mass. 286, the same rule was applied to a manufacturing Co.; see also Essex T. Co. v. Collins, 8 Mass. 292. In Taunton and S. B. T. Co. v. Whiting, 10 Mass. 327, the subscriber was held liable. See also Ripley v. Sampson, 10 Pick. 370, and Chester Glass Co. v. Dewey, 16 Mass. 94; see also Trustees of Phillips Limerick Academy v. Davis, 11 Mass. 113, where it was held that no action would lie on a voluntary subscription to erect an academy. In Connecticut the whole subject has been very elaborately examined, in the Hartford and New Haven R. R. Co. v. Kennedy, 12 Conn. 507, et seq. per Huntington, J., where assumpsit for an assessment was held to lie against the stockholder of a corporation. In New York, see Jenkins v. Union Turnpike Co. 1 Caines' Cases in Error, 86; The Goshen and Minisink Co. v. Hurtin, 9 J. R. 217; The Dutchess Cotton Manufactory v. Davis, 14 J. R. 238; and Spear v. Crawford, 14 Wend. 20, where the defendant was held liable. The question seems generally to turn on the precise form of the association or corporation, and whether a promise to pay is to be implied or not. As to assessments on pews, see Trustees of F. P. C. in Hebron v. Quackenbush, 10 J. R. 217. an action was given by statute against the directors of an insolvent bank, it was held that no action would lie against them at common law, on the same ground that where a new right is given or a new duty imposed by statute, and a remedy provid ed to enforce such duty or for the violation of such right, the remedy given must be pursued.* So, too, in the same State an action of debt does not lie upon an award of damages of a committee of the sessions for locating a highway; a remedy by distress warrant being provided by the statute. "Where a statute gives a right and furnishes the remedy, that remedy must be pursued." And so, as at common law and before the statutes of 18 Eliz. and 6 Geo. II, the putative father of an illegiti mate child was under no legal liability to maintain his illegitimate offspring, and as that liability has been created wholly by statute, the remedy prescribed must be followed: the father is liable under the filiation order, but no action of assumpsit for the support of the child will lie. So too, in Indiana where the exclusive privileges of ferries were not known till they were created by statute, the owners of ferries must rely on the visions of the act for their security. So, too, it has been said in Michigan, that where a statute gives a new right and prescribes a particular remedy, such remedy must be strictly pursued, and the party is confined to that remedy only,—as to recover threefold the amount of usurious interest paid. In New Hampshire it has been said that where a statute authorizes the doing of certain acts (such as the destruction of a highway by a railway company), the necessary consequence of which will be to injure the property of another, and at the same time provides a remedy for the recovery of the damages, the party injured is confined to the statute remedy for such damages, and no remedy can be had upon a common-law declaration.** pro In Maine, it has been said that if a statute gives merely a new remedy where one before existed at common law, it is cumulative, and the party injured is at liberty to pursue either. * Hinsdale v. Larned et al. 16 Mass. 65. Gedney v. Inhabitants of Tewksbury, 3 Mass. 507,309, per Sedgwick, J. vide ante, p. 76. Moncrief v. Ely, 19 Wend. 405; Cameron v. Baker, Carr & Payne, 268; Furillio v. Crowther, 7 Dowl. & Ryl. 612. Lang v. Scott, 1 Blackford, 405; approved Almy v. Harris, 5 John. R. 175. 193. Thurston v. Prentiss et al. 1 Michigan, ** Henniker v. Contoocook Valley R. R. 9 Foster, 147. If a statute gives the same remedy which the common law does, it is merely affirmative, and the party has his election which to pursue. But if a statute withhold the remedy which before existed at common law, the common-law right ceases to exist.* The analogy of these rules holds good in the criminal law. Thus, where an offence intended to be guarded against by a statute, is punishable before the making of any statute prescribing a particular method of punishing it, then such particular remedy is merely cumulative, and does not take away the former remedy; but where the statute enacts that the doing of any act not punishable before shall for the future be punishable in such and such a particular manner, there it is necessary that the particular method prescribed by the act be specifically pursued, and not the common-law mode of an indictment.† It has been said, however, to be a clear and established principle, that when a new offence is created by act of Parliament, and a penalty is annexed to it by a separate and substantive clause, it is not necessary for the prosecutor to sue for the penalty, but he may proceed on the prior clause, upon the ground of its being a misdemeanor. It is no objection in this country to an indictment for an offence against a statute of a State, that the defendant is liable to punishment for the same act under a law of the United States. A State may pass laws declaring acts criminal, and may punish the violation of the law, although the offender may be again prosecuted by the Federal Government for violating her laws by the same act which violated the law of the State. In other words, a party in committing a wrongful act, may by one act violate the laws of the two governments, and render himself amenable to both. || Gooch v. Stephenson, 13 Maine (1 Shep ley) 371. By Lord Mansfield, in Rex v. Robinson, 2 Burr. 799, where held that an indictment would lie for disobedience to a filiation order of the quarter sessions, though a particular forfeiture of twenty shillings per month was affixed to any disobedience of the statute under which the order was made. See Castle's Case, Cro. Jac. 644. In Stephens v. Watson, 1 Salk. 45, it was held that an indictment would not lie for keeping an ale-house without a license, because it was no offence at com. mon law, and the statute making it an offence had made it punishable in another manner. See Rex v. Robinson, approved in Sturgeon v. The State, 1 Blackf. Ind. 39. The King v. Harris, 4 T. R. 205. See this case cited and commented on in the Hartford & N. H. R. R. Co. v. Kennedy, 12 Conn. 499, 527. The State v. Moore, 6 Indiana, 436. |