sideration, when it vitiates. legality of con- engage not to carry on a trade in any part of England; but if the restraint be qualified, so as only to preclude the party from trading in a particular place, or within a certain distance, as, for instance, ten miles, and the breach of the stipulation tend apparently to the detriment of the party in whose favour it was made, and a consideration was given by such party, the contract will not be impeached either at Law or in Equity '. 3dly, A stipulation repugnant to the Custom and Excise laws of this country, as smuggling, &c. 4thly, Dropping a criminal prosecution, or suppressing evidence, or soliciting a pardon, or compounding a felony, misdemeanor, or other public crime, unless it be with leave of the court. 5thly, The recommendation to, or purchase of, an office under government. 6thly, Every illegal wager, repugnant to the principles of general policy, as a wager between voters. on the event of an election, upon the event of a war, or concerning the produce of any particular branch of the revenue, &c. as of the hop duties 7; and cricket, a horse-race, or a foot-race, against time, is a game, within the statute 9 Ann. c. 14. s. 1. 7thly, In general restraint of marriage. 8thly, Procuration • Hunlock v. Blacklowe, 2 Saund. 156. n. 1.—Mitchel v. Reynolds, 1 P. W. 190.-10 Mod. 150. S. C.-Co. Lit. 206. b. n. 1.-Davis v. Mason, 5 T. R. 118.-1 Powell on Contracts, 167. 2 Biggs v. Lawrence, 3 T. R. 454.-Vandyck v. Hewitt, 1 East. 97. Lightfoot v. Tenant, 1 Bos. & Pul. 551.-Guichard v. Roberts, 1 Bla. Rep. 445. Johnston v. Sutton, 1 Dougl. 254.-1 Marsh. on Ins. c. 5. Holt C. N. P. 107. n. see Hodgson v. Temple, 5 Taunt. 181. 3 Wallace v. Hardacre, 1 Campb. N.P. 45.-Poole v. Bousfield, id. 55. Nerot v. Wallace, 3 T. R. 17.-Dragge v. Ibberson, 2 Esp. Rep. 643. Fallows v. Taylor, 7 T. R. 475.-Edgcombe v. Rodd, 5 East. 294.Johnson v. Ogilby, 3 P. W. 279.-Collins v. Blantein, 2 Wils. 349.Norman v. Cole, 3 Esp. Rep. 253.-1 Leon. 180.-Beall v. Wingfield, 11 East. 46.—Brett v. Close, 16 East. 293. 4 Harrington v. Du Chatel, Bro. C. C. 114.-Bayl. on Bills, 122. Allen v. Hearn, 1 T. R. 56.-Becley v. Wingfield, 11 East. 46.Pilkington v. Green, 2 Bos, & Pul. 151. Lacaussade v. White, 7 T. R. 535.-Allen T. Hearn, 1 T. R. 57. 'Atherfold v. Beard, 2 T. R. 610.—Shirley v. Sankey, 2 Bos. & Pul. 130. 8 Jeffreys v. Walter, 1 Wils. 220.-Lynall v. Longbothom, 2 Wils. 36. Hartley v. Rice, 10 East. 22, qualified,-Gibson v. Dickie, 3 M. & S. 463.-Lowe v. Peers, Burr, 2225. sideration, when of marriage'. 9thly, Future illicit cohabitation, but legality of compast cohabitation is a legal consideration". So a it vitiates. promissory note given to indemnify a parish against a bastard child, is illegal, as being contrary to the general policy of the law, as well as the letter of the 6 Geo. 2. c. 313. But the release, by an Excise officer, of a person apprehended for penalties under the Excise Laws, will be a sufficient consideration for a note, the commissioners having approved of his taking it, and this, although he had no previous authority. So any stipulation prejudicial to the feelings or interests of a third person, and made without his concurrence, as a wager as to the sex of a third person, or contrary to the benevolent intent of others, as a secret stipulation, before a composition deed is signed, that one of the creditors shall have a larger dividend, or a better security, than the rest is void. But after a com : Co. Lit. 206. b. and see note 4, ante, 96. Ex parte Mumford, 15 Ves. 289.-Gibson v. Dickie, 3 M. & S. 463.-Walker v. Perkins, Burr. 1568.-Marchioness of Annandale v. Harris, 2 P. W. 432.-Turner v. Vaughan, 2 Wils. 339.-Hill v. Spencer, Amb. 641.-Ex parte Cottrell, 2 Cowp. 742.-Wightwick 7. Banks, Forrest. 153. 3 Cole v. Gower, 6 East. 110. Pilkington v. Green, 2 Bos. & Pul. 151.-Beeley v. Wingfield, 11 East. 46. 5 Sugars v. Brinkworth, 4 Campb. 46. This was an action against the maker of a promissory note. The note was given by the defendant for the amount of penalties, of which he had been convicted before magistrates, under the Excise laws, to prevent an execution issuing against his goods. On the part of the defendant, it was contended, that there was no legal consideration for the note, as it was the plaintiff's duty to have levied the amount of the penalties, and not to have taken any security. Lord Ellenborough. The defendant gave the promissory note at two months, in redemption of his goods, which were liable to be instantly sold for what they could fetch. This surely was sufficient consideration. I do not think any previous consent by the commissioners of Excise, or the magistrates, was necessary for the arrangement. Verdict for plaintiff. Vide Pilkington v. Green, 2 Bos. & Pul. 151. S. P. Da Costa v. Jones, Cowp. 729.-Harvey v. Gibbons, 2 Lev. 161. Eastbrook-v. Scott, 3 Ves. 456.-Ditchburn v. Goldsmith, 4 Campb. 152.-Gilbert v. Sykes, 16 East. 150. ?Jackson v. Duchaire, 3 T. R. 551. Cockshott v. Bennet, 2 'T'. R. 763.-Leicester v. Rose, 4 East. 372. Spurrett v. Spiller, 1 Atk. 105.-Jackson v. Lomas, 4 T. R. 166.—Cooling . Noyes, 6 T. R. 263.-Bryant v. Christie, 1 Stark. 329.Bayl. 230. sideration, when it vitiates. Illegality of con- position deed has actually been signed by all the creditors, a bill or note, affording a better security to one of them, has been deemed valid'. At common law, a wager is legal, if it be not an incitement to a breach of the peace, or to immorality, or if it do not affect the feelings or interest of a third person, or expose him to ridicule, or libel him, or if it be not against sound policy, or merely to try a point of law *. By statute; as usury and cases thereon. Secondly, Some considerations, as well as contracts, are declared to be invalid by statute, as usury, by the 12 Ann. stat. 2. c. 163, which has two distinct provisions; first, avoiding all bonds, contracts, and assurances, for the payment of any money to be lent, &c. whereupon or whereby there shall be reserved or taken above £5 per cent.; and secondly, subjecting the party táking above £5 per cent. to an action for treble the sum lent, or forborne, &c. Thus it is enacted, "That no person or persons whatsoever, upon any contract, take, directly or indirectly, for loan, of any monies, wares, merchandize, or other commodities whatsoever, above the value of £5, for the forbearance of £100, for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter time; and that all bonds, contracts, and assurances whatsoever, made for payment of any principal, or money to be lent, or covenanted to be performed upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of £5 in the hundred as aforesaid, shall be utterly void; and that all and every person or persons whatsoever, which shall, upon any contract, take, accept, and receive, by way or means of any corrupt bargain, loan, exchange, chevizance, shift, or interest, of any wares, merchandizes, or other thing or things whatsoever, or by any deceitful way or means, or by any covin, engine, or deceitful conveyance, for the Feise v. Randall, 6 T. R. 146.-Bayl. 230, 1. * Good v. Elliot, 3 T. R. 693.-Henkin v. Guerss, 12 East. 247.Gilbert v. Sykes, 16 East. 150. 3 See the observations on this statute, Holt C. N. P. 259. sideration, when forbearing or giving day of payment, for one whole megality of conyear, of and for their money, or other thing above the it vitiates. sum of £5, for the forbearing of £100 for a year, and so after that rate for a greater or lesser sum, or for a longer or shorter term, shall forfeit and lose, for every such offence, the treble value of the monies, wares, merchandizes, and other things, so lent, bargained, exchanged, or shifted." Upon this statute it has been determined, that the security is void, though, on the face of it, it may appear legal, if there be any other illegal private stipulation between the original parties, for matter, dehors the security, may, in all cases, be shewn in pleading, if it be illegal'; and usury, in a small part of the consideration, renders a bill invalid. Usury also affects the contract, even in the case of a bill of exchange in the hands of a bonâ fide holder'; and a bill drawn in consequence of an usurious agreement for discounting it, is void in the hands of a bonâ fide holder, although the drawer was not privy to such agreement. But a second security given to the bonâ fide holder of a bills, or for what 'Petrie v. Hannay, 3 T. R. 424.-Fisher v. Beasley, Dougl. 235. Harrison v. Harrison, 1 Marsh. 349.-5 Taunt. 780. S. C. 1 Lowe v. Waller, Dougl. 735.-Cuthbert v. Haley, 8 T. R. 390.Ferrail v. Shaen, 1 Saund. 295.-Parr v. Eliason, 1 East. 92.Bayl. 237, 8.-Lowe v. Waller, Dougl. 708. 736. The defendant was acceptor of a bill which he gave to Harris and Stratton upon an usurious contract; Harris and Stratton indorsed it to the plaintiff for a valuable consideration, and the plaintiff had no notice of the usury. Upon a case reserved, the question was, whether the usury between Harris and Stratton, and the defendant, was a defence against an indorsee, who took the bill bonâ fide, and paid a valuable consideration for it; and after time taken to consider, the court held it was, and though Lord Mansfield had a wish that the law should turn out in favour of the plaintiff, the court found the words of the act too strong, and could not get over the case of Bowyer v. Bampton, Stra. 1155. which see, post, 101. But see the observations of Gibbs, C. J. in Jones v. Davison, Holt C. N. P. 256. where a doubt is suggested as to the propriety of this doctrine. However it was confirmed in the case of Lowes v. Mazzaredo, 1 Stark. 385. See post, 104. n. 8. *Ackland v. Pearce, 2 Campb. 599.-Young v. Wright, 1 Campb. 139. Cuthbert v. Haley, 8 T. R. 390.-George v. Stanley, 4 Taunt. 683. which see, post, 101. n. 2. sideration, when it vitiates. Illegality of con is fairly due', is in general valid; and after suffering judgment by default, or confessing a judgment in favour of a bonâ fide holder, it is too late to object to the legality of the consideration. It is not usury, though improper, for an acceptor to discount his own acceptance at a premium3. Where a check is given on an usurious transaction, it cannot be deemed an advance of money, unless specially agreed to be taken as cash, until it has been actually paid. Gaming, &c. A gaming consideration is declared illegal by the statute 16 Car. 2. c. 7. and 9 Ann. c. 14. The first statute avoids all securities, whether written or verbal, given to secure any sum of money exceeding £100 lost at play: but the 9 Ann. only avoids written contracts, and an action of assumpsit will lie to recover money won at play, not amounting to £106. By the 9 Ann. c. 14. s. 1. it is enacted, "that all notes, bills, bonds, judgments, mortgages, or other securities or conveyances whatsoever, given, granted, drawn, or entered into, or executed by any person or persons whatsoever, where the whole or any part of the consideration of such conveyances or securities, shall be, for any money or other valuable thing whatsoever, won by gaming or playing at cards, dice-tables, tennis, bowls, or other game or games whatsoever, or by betting on the sides or hands of such as do game at any of the games aforesaid, or for the reimbursing or repaying any money knowingly lent or advanced for such gaming or betting as aforesaid, or lent or advanced at the time and place of such play, to any per * Barnes v. Hedley, 2 Taunt. 184. which over-rules 1 Campb. 167. Shepherd v. Charter, 4 T. R. 275.-George v. Stanley, 4 Taunt. 683.-See post, 101. n. 2. post, 106. n. 4. 3 Barclay v. Walmsley, 4 East. 55. Brooke v. Middleton, 1 Campb. 445.-Borrodaile v. Middleton, 2 Campb. 53. As to the principle on which the law of usury proceeds, see Molloy v. Irwin, 1 Scho. & Lef. 312. Drew D. Power, id. 195. 51 Pow. 207.-Bac. Ab. tit. Gaming. |