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Securities for

again by the loser (w). But if it has not been paid, the winner cannot maintain any action for it, because the contract is null and void (x).

All Securities under seal, except Mortgages, given for money so lost. Money lost at lawful Play, or at any legal Game, would now appear to be good (y). But where a Promissory Note, a Bill of Exchange, or a Mortgage, has been given for money so lost, it is not void as formerly, but is to be deemed and taken to have been given for an illegal consideration (z). The consequence of which is, that they are still roid as between the original parties, and also as against all persons who have taken them with Notice of the illegality, or after they have become overdue, or without giving value for them; but good in the hands of every person who has given value, and taken the instrument bonâ fide, and before it was due (a).

General effect of 5 & 6

Will. 4, c. 41.

Accordingly where a bond was assigned for a valuable consideration without notice of objection to its validity, the obligor having applied to the assignee for a further advance, and offering to give a mortgage for the whole, but stating no objection to the validity of the bond, was not allowed afterwards to endeavour to avoid the bond by evidence that it was given to secure money lost by a bet on a Horse Race; for the Court will not allow a person to set up an objection to the validity of his own obligation upon grounds which he suppressed at the time, but against which, if divulged, the obligee could have protected himself (b). It appears, therefore, that bonds are within the equity of 5 & 6 Will. 4, c. 41, which makes securities valid in the hands of bonâ fide holders without notice that the consideration was a gaming debt (c).

The effect of the Act, therefore, seems to be, that where a sum of money is won as a Stake in a lawful Game, or under other circumstances therein mentioned, and a Promissory Note, Bill of Exchange or Mortgage is given in payment, or as a security, not only is the instrument void as between the parties themselves, but the circumstance of its

(w) M'Kinnell v. Robinson, 3 M. &
W. 441; Thistlewood v. Cracroft,
1 M. & S. 500; Smith, Contr. 188.
(x) 8 & 9 Vict. c. 109, s. 18.
(y) Formerly void under 9 Ann.
c. 14, s. 1, which is altered and re-
pealed by 5 & 6 Will. 4, c. 41, ss. 1,
2, and 8 & 9 Vict. c. 109, s. 15.

(2) 5 & 6 Will. 4, c. 41, Ap

pendix.

(a) Smith, Contr. 186; Fadenilke v. Holroyd, before Chief Justice Wilde, Common Pleas Sittings, Nov. 30, 1846.

(b) Hawker v. Halliwell, 3 Sm. & Giff. 194. See also ante, p. 417, Hill v. Fox, 4 H. & N. 359.

(c) See post, p. 446.

having so been given avoids the contract on which it is founded. In such case, therefore, the Winner not only loses the benefit of his security in writing, but is deprived of his claim to the consideration upon which it was given.

The Court of Exchequer, however, appear to have gone further in their construction of the Statute; for Mr. Baron Rolfe, in delivering the Judgment of the Court in Applegarth v. Colley (d), and speaking of 5 & 6 Will. 4, c. 41, says, "That Act, while it repeals so much of the Statute of Anne as makes the securities void, expressly enacts that they shall be deemed to have been given on an illegal consideration, and it is impossible to impute to the Legislature an intention so absurd as that the consideration should be good and capable of being enforced until some security is given for the amount, and then that, by the giving of the security, the consideration should become bad."

The necessary conclusion is then arrived at, namely, "that the Statute of Anne, in connection with the 5 & 6 Will. 4, c. 41, must be taken to avoid all contracts for the payment of money won at play;" and of course all other contracts within the first section of 9 Anne, c. 14.

According to this view, then, every possible consideration within 5 & 6 Will. 4, c. 41, for any Note, Bill or Mortgage is void, and we are reduced to the dilemma of being obliged to hold that the Winner of a Stake or the lender of money in any lawful Game, where his right to recover could never otherwise be disputed, is precluded from his remedy on account of the existence of the possibility of his taking a Note, Bill or Mortgage within the Statute as security for his Stake or Loan. And therefore the sum agreed to be paid to the Winner of a Horse Race could never be recovered, if we hold that such a Race is now meant by the word Game. However, if the point had come directly before the Court, perhaps a different opinion might have prevailed.

In Thorpe v. Colman (e), the Court of Common Pleas studiously guarded themselves against expressing an opinion on the construction put by the Court of Exchequer upon 5 & 6 Will. 4, c. 41, and the case was decided on another ground.

In a later case (ƒ), however, Mr. Justice Coltman makes the following remarks:-"It certainly does seem to be a

(d) Applegarth v. Colley, 10 M. & W. 732.

(e) Thorpe v. Colman, 1 C. B. 199. (f) Batty v. Marriott, 5 C. B. 828.

Action

against acceptor of Bill

singular anomaly, that the Winner of a Race should be entitled to recover the Stakes, and yet that by the combined operation of 9 Anne, c. 14, and 5 & 6 Will. 4, c. 41, if a Promissory Note or other Security were given for the amount, he would be precluded from availing himself of it, by reason of the illegality of the consideration."

The 5 & 6 Will. 4, c. 41, is "An Act to amend the Law relating to Securities given for Considerations arising out of Gaming, usurious and certain other illegal Transac tions." It is founded on 16 Car. 2, c. 7, and 9 Anne, c. 14, both of which are Acts to prevent excessive Gaming; and the notion upon which the sections with regard to securities in writing were probably framed appears to have been, that there would be less danger of excessive and immoderate Gaming, if people were kept as much as possible to playing for ready money. The Legislature therefore having encouraged cash or money transactions, it is quite conceivable that a contract should be good so long as a money payment was contemplated, but become roid between the parties immediately on security being given. This construction of the statute seems much more reasonable, than that all contracts within 5 & 6 Will. 4, c. 41, in connection with 9 Anne, c. 14, before any security is given, should be void between the actual parties.

To an action against the acceptor of a Bill of Exchange, drawn by the plaintiff, the defendant pleaded that a Bet of Exchange. was lost by the defendant to A. B., and that the said Bill of Exchange was, at the request of A. B., given and accepted by the defendant in consideration of the said Bet, and to secure payment thereof, contrary to the Statute, &c., and that there never was any other consideration for the acceptance of the said Bill; and that the plaintiff at the time when he drew, and the defendant accepted, the same, had Notice of the premises. The evidence was, that the defendant had accepted a prior Bill drawn by the plaintiff in consideration of the Bet lost to A. B., and that the Bill sued upon was given in renewal of that prior Bill. The Jury found that the Bill declared upon was given in consideration of the Bet, and that the plaintiff had Notice of it. And the Court of Queen's Bench held that the plea was good, and was an answer to the action under 5 & 6 Will. 4, c. 41 (g).

(a) Hay v. Ayling, 20 L. J., Q. B. 171; and see Boulton v. Coghlan, 1 Bing. N. C. 640.

Bill of Ex

Under 5 & 6 Will. 4, c. 41, s. 2, money paid to the Action by indorsee by the acceptor of a Bill of Exchange, given for acceptor of a Gaming consideration, may be recovered from the person change. in whose favour the Bill was originally accepted, in an action for Money paid by the plaintiff to the use of the defendant at his request ().

interest.

And where such a Bill paid by the plaintiff bore Inte- Recovery of rest upon the face of it, it was held by the Court of principal and Queen's Bench that the plaintiff was entitled to recover back the Interest paid, as well as the principal money, both being "secured" by the Bill (i).

In an action on a Bill of Exchange, the defence was, Evidence of that the money for which the Bill was given had been owner of a Gaming lost in a Gaming transaction. The person who let the House. Room in which the Gambling took place, was asked a question tending, if answered, to render him liable to be proceeded against under 8 & 9 Vict. c. 109, when the Judge interfered. On a motion for a new trial, on the ground of misdirection, the Court of Common Pleas held that the Judge was right, and refused the rule (j).

Summons to

set aside a Warrant of

In Barnett v. Ravenshaw (k), an order was made by a Judge at Chambers, on a summons to show cause why a certain Warrant of Attorney, alleged to have been given Attorney. for a Gambling debt, should not be set aside.

good.

In 1833, a Post Obit security was given in considera- A Post Obit tion of certain Gaming debts. In 1842, it was assigned Security held to another party for valuable consideration, who gave Notice to the trustees of the fund. It was held in 1853, by the Master of the Rolls, that, after the lapse of time, the Deed must be considered to have been given for good consideration (7).

In the case of The Attorney-General v. Hollingworth (m), it was held, that where, upon an advance of money, a security has been taken, which is tainted with usury (n) or other illegality, and afterwards another security is taken for the same advance, not tainted with the illegality, and obviating any necessity for resorting to the former one for the recovery of the money, such substituted security is valid, and the money really advanced can be recovered thereon.

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A Common
Betting
House.

Ir is quite clear that any practice which has a tendency to injure the public morals, is an offence at common

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