Money lent to play at any illegal game cannot be recovered back by the lender. "This principle," says Lord Abinger, "was not for the first time laid down in Cannan v. Bryce (b), but that case finally settled that the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced” (c). To discuss in detail the complicated provisions of the gaming acts, and the minute distinctions which arise on them, would be to wander from the main subject. CHAPTER Horse-races, though legalized by 13 Geo. 2, c. 19, and 18 Horse-racing. Geo. 2, c. 34, were within the former acts against gaming (d). But a bet under 107., on a legal horse-race, was valid (e); though a bill or note given to secure it would have been void (ƒ). But if the horse-race be for a sum less than 50%. (g), or above 501., but not a contest between horses running on the turf, the bet was void (h). A bill of exchange or note given for a gaming debt was, Innocent inuntil recently, void, even in the hands of an innocent in- dorsee. dorsee for value, as against the party losing at play: but as against other parties it was, and still is, valid. Thus, if a bill were accepted, or a note made, for a gaming debt, no party could charge the acceptor or maker (i); but the drawer and indorser were and are nevertheless liable (k). The same rule of law applied to bills or notes given for the ransom of captured ships or cargoes (1); to bills or notes given by a bankrupt to his creditor to induce him to sign the bankrupt's certificate (m). In all these cases, as well as in the case of usury, the acts of parliament avoid 5 E. & B. 238, S. C. See further, on the construction of the act, Parsons v. Alexander, 24 L. J., Q. B. 277; 5 E. & B. 263, S. C.; Coombes v. Dibble, Law Rep., 1 Exch. 248. (b) 3 B. & A. 179. (c) M'Kinnell v. Robinson, 3 M. & W. 434. (d) Goodburn v. Marley, 2 Stra. 1159; Clayton v. Jennings, 2 W. Bl. 706; Blaxton v. Pye, 2 Wils. 309; Shillito v. Theed, 7 Bing. 405; 5 M. & P. 303, S. C. (e) M'Allister v. Haden, 2 Camp. 438. (ƒ) 9 Anne, c. 14, s. 1. (g) Johnson v. Bann, 4 T. R. 1. (h) Ximenes v. Jacques, 6 T. R. 499; Whaley v. Pajot, 2 B. & P. 51; see now 3 & 4 Vict. c. 5, which repeals 13 Geo. 2, c. 19, and 8 & 9 Vict. c. 109. (i) Bowyer v. Bampton, 2 Stra. 1155; Shillito v. Theed, 7 Bing. 405; 5 M. & P. 303, S. C. (k) Ibid.; Edwards v. Dick, 4 B. & Ald. 212. (7) 45 Geo. 3, c. 72, s. 17. (m) 12 & 13 Vict. c. 100, s. 202; Wiggins v. Read, C. P., T. T. 1862; or not to oppose the order for discharge, 24 & 25 Vict. c. 134, s. 166. CHAPTER New security. Stock-jobbing. ing bills or notes, so far as they make the instruments absolutely void, are repealed by the 5 & 6 Will. 4, c. 41, s. 1 (n). This statute enacts, that in these cases bills or notes which would otherwise have been void, shall only be taken to have been given for an illegal consideration (o). The effect of the enactment is conceived to be, that they are good in the hands of an innocent indorsee for value against all parties (p). The second section of this statute enacts, that if a loser at play gives a negotiable instrument, void under the acts against gaming, and pays the transferee, he may recover back the money so paid from the person to whom he originally gave the bill or note (q). Even under the old law a renewed security was good, if given to an innocent indorsee before the bill fell due (r). 3. Stock-jobbing. The Stock-Jobbing Act was the 7 Geo. 2, c. 8, made perpetual by 10 Geo. 2, c. 8, but now both statutes are repealed by the 23 & 24 Vict. c. 28 (s). The principal provisions of the first-mentioned statute were as follow (t): 1. Putting upon stock was prohibited; that is, a contract to pay or receive a certain sum of money for the liberty to deliver or not to deliver, or to accept or refuse a certain quantity of stock at a fixed price on a given day. Such a contract is declared void, the money paid is made recover (n) This statute is preserved in force by 8 & 9 Vict. c. 109, s. 15, the effect of which seems to be, that a winner of stakes may recover, though a promissory note for the amount would be void. Batty v. Marriott, 17 L. J., C. P. 215; 5 C. B. 818, S. C. (0) As to the effect of this enactment, see Edmunds V. Groves, 2 M. & W. 642. Both sections of the statute are prospective. Hitchcock v. Way, 2 N. & P. 72; 6 Ad. & El. 943, S. C.; Humphreys v. Earl of Waldegrave, 6 M. & W. 622. (p) Hay v. Ayling, 16 Q. B. 423. See Fitch v. Jones, 5 E. & B. 238. But see Goldsmid v. Hampton, 5 C. B., N. S. 94. In the case of a bankrupt it is now expressly so enacted, 24 & 25 Vict. c. 134, s. 166. (g) But it is no defence to an action against an acceptor that the bill was given for bets on horseraces, made by the drawer as his agent, and paid without his request. Oulds v. Harrison, 10 Exch. 572. (r) George v. Stanley, 4 Taunt. 683. (s) Quare, whether some cases of gaming in stock may not have been within 9 Anne, c. 14, and be not now within 8 & 9 Vict. c. 109. (t) Transactions in foreign stock are not within this statute. Henderson v. Bise, 3 Stark. 158; Wells v. Porter, 2 Bing. N. C. 723; Oakley v. Rigby, 2 Bing. N. C. 732; nor railway shares, Hewitt v. Price, 4 M. & G. 355; Williams v. Trye, 18 Beav. 366. able, and both parties are subject to the penalty of 5001., unless the money paid has been recovered or refunded. 2. The payment of money, instead of delivering or receiving stock, subjects to the penalty of 1007. 3. It has been supposed that contracts to buy or sell stock, of which the seller is not at the time possessed, subjected both parties to the penalty of 500l. But such contracts were afterwards held to be legal (u). It was formerly held, that money expended by another person in settling a stock-jobber's differences for him, or money lent him to settle them with, could be recovered (x). But it was afterwards settled, that as the fifth section of the act 7 Geo. 2, c. 8, prohibits expressly the payment of money for the arrangement of differences, a person paying differences for another, or lending him money to pay them himself, advanced money for an illegal purpose, and could not recover it back (y). The following cases relating to bills have been decided on this statute: The defendant employed a broker (z), to pay differences for him, and after they were settled a dispute arose between them as to the amount of money so paid by the broker. The case was referred to the plaintiff and three other arbitrators, who awarded the sum of 3067. 12s. 6d. to be due from the defendant to his broker. The broker then drew on the defendant for 1007., part of this sum; the defendant accepted the bill, and the broker indorsed it to the plaintiff. It was held that the bill was void as between the broker and the defendant, and the plaintiff, having been an arbitrator, had notice of the illegal consideration, and stood in the same situation as the broker (a). Where a broker had settled differences for his principal in omnium, had taken his principal's acceptance for the amount, and indorsed the bill when overdue, it was held, first, that jobbing in omnium was within the act; secondly, that the bill was void in the hands of the broker; and thirdly, that having (u) Mortimer v. M'Callan, 7 M. & W. 20; affirmed 9 M. & W. 636. (x) Faikney v. Reynous, 4 Burr. 2069; Petre v. Hannay, 3 T. R. 418. (y) Cannan v. Bryce, 3 B. & Ald. 179; M Kinnell v. Robinson, 3 M. & W. 434. (z) Stock brokers are within the statutes 6 Anne, c. 16, s. 4, and 57 Geo. 3, c. 40; Clarke v. Powell, 4 B. & Ad. 846; 1 N. & M. 492, (a) Steers v. Lashley, 6 T. R. CHAPTER X. CHAPTER X. Other considerations illegal by statute. been indorsed when overdue, it was also void in the hands of the indorsee, as against the acceptor (b). A stock-jobber gave his broker a promissory note for differences paid for him by his broker, and the broker indorsed it overdue to the plaintiffs. The plaintiffs threatened to sue the defendants upon the note, but they consented to give up the note, and take the defendant's bond instead, knowing, at the time they took the bond, that the note had been given on an illegal consideration. Held, that they could not originally have recovered upon the note, nor afterwards upon the bond (c). Where a man gave his acceptance for differences owing from himself to the drawer, and the drawer indorsed the bill for value without notice, it was held that the indorsee might recover against the drawer (d). And as the statute does not expressly avoid securities given for differences, it should seem, the indorsee might have recovered against the acceptor (e). Where a man sells stock of which he is not possessed, and afterwards buys it and transfers it to the vendee, he might, notwithstanding the statute, maintain an action for the price (ƒ). This act is to be construed strictly (g). Besides the cases which have been mentioned, there are many other instances of securities expressly avoided by the legislature; as, gaming policies on ships or lives (h); sale of an office (i); a stipulation with a sheriff for ease or favour (k); a security whereby a creditor of a bankrupt who has proved his debt is to receive more than others (1); or to receive anything for signing the bankrupt's certificate (m); or for not opposing the order for his discharge (n); a security given by a man for a debt from which he has been dis (b) Brown v. Turner, 7 T. R. 630; 2 Esp. 631, S. C. (c) Amory v. Merryweather, 2 B. & C. 573; 4 D. & R. 86, S. C. (d) Day v. Stuart, 6 Bing. 109; 3 M. & P. 334, S. C. (e) See Mr. J. Holroyd's observations in Broughton v. Manchester Water Works Company, 3 B. & Ald. 10. (f) Mortimer v. M'Callan, 7 M. & W. 20; affirmed 9 M. & W. 636. (g) Wells v. Porter, 2 Bing. N. C. 730; Hewitt v. Price, 4 M. & G. 355. (h) 19 Geo. 2, c. 37; 14 Geo. 3, c. 48. (i) 5 & 6 Edw. 6, c. 16; 49 Geo. 3, c. 126; 53 Geo. 3, c. 129. (k) 23 Hen. 6, c. 9. (1) 12 & 13 Vict. c. 106, s. 268; Rose v. Main, 1 Bing. N. C. 357; 1 Scott, 127, S. C.; Davis v. Holding, 1 M. & W. 159. (m) 12 & 13 Vict. c. 106, s. 202; Birch v. Jervis, 3 C. & P. 379; Taylor v. Wilson, 5 Exch. 251; Hankey v. Cobb, 1 Q. B. 490; Smith v. Saltzman, 9 Exch. 235. (n) 24 & 25 Vict. c. 134, s. 166. charged by the Insolvent Debtors' Act (o). And to these, (except where the statute (p) gives a title to a holder for value without notice,) the same general rules apply as to securities given for a gaming debt, before that statute. Many cases there are, also, in which, though the transaction is prohibited by the legislature, the security is not expressly avoided. In such instances, the bill is void in the hands of parties to the illegal transaction, or cognizant thereof, but not in the hands of a bonâ fide indorsee for value, before the bill is due, without notice of the illegality (q). The 24 Geo. 2, c. 40, s. 12, prohibits persons from recovering a debt incurred by sale of spirituous liquors, in less quantities than of the value of 20s.; and, where part of the consideration for a bill was for spirituous liquors, within the statute, and part for money lent, the bill was wholly void in the hands of the payee (r). But where the defendant was indebted to the plaintiff for board and lodging, and for spirituous liquors in quantities of less value than 20s., and having made the plaintiff several unappropriated payments, gave a promissory note for the balance, it was held that the plaintiff might appropriate these payments to the discharge of his demands for spirituous liquors, and that the consideration of the note being thus purged of those items, the plaintiff might recover on the note (s). So a bill of exchange accepted to secure payment of money taken at the doors of an unlicensed theatre, is void (t) in the hands of the payee, who knew the theatre to be unlicensed. Therefore, also, as the statute 57 Geo. 3, c. 99, prohibits spiritual persons from trading, it was held, that a joint-stock banking company, in which a beneficed clergyman held shares, could not sue as indorsee on a bill of exchange (u). In consequence of this decision, an act of (0) Evans v. Williams, 1 C. & M. 30; 3 Tyrw. 266, S. C.; Ashley v. Killick, 5 M. & W. 509; and see Kernot v. Pittis, 2 E. & B. 421; Humphreys v. Willing, 32 L. J., Ex. 33; 1 Hurl. & Colt. 7. (p) 5 & 6 Will. 4, c. 41, s. 1; 24 & 25 Vict. c. 134, s. 166. (q) Wyat v. Bulmer, 2 Esp. 538. (r) Scott v. Gilmore, 3 Taunt. 226. Quære tamen, see Crookshanks v. Rose, 1 M. & Rob. 100; 5 C. & P. 19, S. C. Where two sorts of spirits had been supplied at one time, the amount of each sort being under 20s., but of both together above 20s., it was held (8) Crookshanks v. Rose, 1 M. (t) De Begnis v. Armistead, 10 Bing. 107; 3 M. & P. 511, S. C. (u) Hall v. Franklin, 3 M. & W. 259; 1 Har. & W. 8, S. C. CHAPTER |