debt, was held to be valid in the hands of a bona fide holder, if he took it when he was ignorant of the illegality (b). And an action against the indorser of such a bill or note, at the suit of a bonú fide holder, might be sustained (c), for to allow this defence to the drawer or indorser would be to protect the party who had violated the provisions of the act. And now by the 5 & 6 Will. IV. c. 41, intituled "An Act to amend the Law relating to Securities given for Considerations arising out of Gaming, Usurious and certain other Illegal Transactions," after reciting 16 Car. II. c. 7; 10 Will. III. (Ireland); 9 Anne, c. 14; 11 Anne (Ireland); 12 Anne, st. 2, c. 16; 5 Geo. II. (Ireland); 58 Geo. III. c. 93; 45 Geo. III. c. 72, s. 17, which makes void all contracts, bills and notes for ransom of any ship, &c.; 6 Geo. IV. c. 16, s. 125; 11 & 12 Geo. III. c. 93, (Ireland, making void all contracts and securities for signing a bankrupt's certificate); and that securities and instruments made void by the recited acts, other than bills and notes made valid by the 58 Geo. III. c. 93, are sometimes indorsed, transferred, assigned or conveyed to purchasers or other persons for a valuable consideration, without notice of the original consideration for which such securities or instruments were given; and the avoidance of securities or instruments in the hands of such purchasers or other persons is often attended with great hardship and injustice, it is enacted "that so much of the recited acts as enacts, that any note, bill or mortgage, shall be absolutely void, shall be and the same is hereby repealed; but nevertheless every note, bill or mortgage, which, if this act had not been passed, would, by virtue of the said recited acts, or any of them, have been absolutely void, shall be deemed and taken (d) to have been made, drawn, accepted, given or executed, for an illegal consideration, and the said several acts shall have the same force and effect which they would respectively have had if, instead of enacting that any such note, bill or mortgage, should be absolutely void, such acts had respectively provided that every such note, bill or mortgage, should be deemed and taken to have been made, drawn, accepted, given or executed, for an illegal consideration; provided always that nothing herein contained shall prejudice or

(b) George v. Stanley, 4 Taunt.

683.

As to pleading illegality of substituted bill, see Boulton v. Coglan, 1 Scott, 588; 1 Bing. N. C. 640, S. C.

(c) Edwards v. Dick, 4 B. & AI.

212; Day v. Stuart, 6 Bing. 109.

(d) In Hitchcock v. Way, 6 Ad. & E. 943; N. & P. 72, S. C., this as well as the following section was held to be prospective.

affect any note, bill or mortgage, which would have been good and valid if that act had not been passed."

By the statute 14 Geo. III. c. 48, no insurance shall be made on the life of any person, or on any other event wherein the person for whose use or benefit, or on whose account, such policy shall be made, shall have no interest, by way of gaming or wagering." Upon this enactment it was decided, in Paterson v. Powell (e), that an engagement, in consideration of forty guineas, to pay 1007. in case Brazilian shares should be at a certain price, on a certain day, subscribed by several persons, each for himself, is a void wagering policy.

But we have seen that a contract for the sale of goods, to be delivered at a future day, is not invalid, though the vendor at the time of the contract was not possessed of the goods, nor had agreed to buy them, nor had any expectation of becoming possessed of them by the time appointed for their delivery, except by purchasing them after the making of the contract (ƒ).

Horse-racing. This is regulated by the statutes 13 Geo. II. c. 19, and 18 Geo. II. c. 34; and it may be laid down as a general rule, that all contracts relating to races which are not conducted according to the provisions of those acts, are void; for horse-racing is gaming within the statute of Anne (g).

The 13 Geo. II. provides, that no horse shall be entered, or start or run for any plate, except by the owner (h); that no person shall enter and start more than one horse for the same prize; and that no plate, money or thing, shall be run for, or advertised to be run for, by any person, unless such plate, prize, or sum of money, be of the full, real and intrinsic value of 50%. or upwards. And by section 4, every race that shall be run for any plate, prize, or sum of money, shall be begun and ended on the same day.

These statutes relate to bona fide horse-racing on the turf only; and therefore a wager that the plaintiff could perform a certain distance in a post chaise, or on a horse, on the high road, is illegal (i). So an agreement to sell a horse for 2001. if he

(e) Paterson v. Powell, 2 Moore & S. 399; 9 Bing. 320.

(f) Hibblewhite v. M'Morine, 5 M. & W. 462; unte, 418; and see Morgan v. Pebrer, 3 Bing. N. C. 466.

(g) Alcinbrook v. Hall, 2 Wils. 309; Goodburn v. Marley, Stra. 1159;

Brogden v. Marriott, 2 Scott, 712; 3
Bing. N. C. 88, S. C.

(h) Qu. Whether a person who enters his horse in the name of a third person could recover the stakes?

(i) Ximenes v. Jaques, 6 T. R. 499; Whaley v. Pajot, 2 B. & P. 51.

trotted eighteen miles within the hour, but for 1s. if he failed, is illegal (k).

A match of 251. aside satisfies the statute, which requires that the prize or money to be run for amounts to 50l. (1).

If the race be for 501., or more, according to the statute 13 Geo. II., a bet thereon is good, as not contravening the statute 9 Anne, if neither of the sums betted amount to 10l. (m). But if the prize be not of the value of 50l., no bet thereon for any sum is valid (n). And, though the race be valid, if either of the bets amount to or exceed 107., neither of such bets can be enforced (o); because, as the bet beyond the limited sum cannot be recovered, there is no mutuality ( p).

IV. STOCK-JOBBING.

The statute 7 Geo. II. c. 8 (made perpetual by 10 Geo. II. c. 8) enacts, that all contracts and agreements upon which any premium shall be given or paid for liberty to put upon or deliver, receive, accept or refuse, any public or joint stock, or other public securities whatsoever, or any part, share or interest therein, and also all wagers, and contracts in the nature of wagers, and all contracts in the nature of putts and refusals, relating to the then present or future price of or value of any such stock or securities as aforesaid, shall be void; and all premiums or sums of money given, received, paid or delivered, upon any such contracts or agreements, or upon any such wagers, or contracts in the nature of wagers, shall be restored or repaid to the person who shall give, pay, or deliver the same, who shall be at liberty, within six months after the agreement, or laying the wager, to sue for and recover the same from the person receiving them, with double costs of suit, by action of debt, founded on the act (q); and in which action it shall be sufficient for the plaintiff to allege that the defendant is indebted to the plaintiff, or has received to his use the money or premium so paid or received, whereby the plaintiff's action accrued to him according to the form of the statute, without setting forth the special matter.

(k) Brogden v. Marriott, 3 Bing. N. C. 88; 2 Scott, 712.

(1) Bidmead v. Gale, 4 Burr. 2432; 1 Bla. R. 671, S. C.

(m) Good v. Elliott, 3 T. R. 705; M'Allester v. Haden, 2 Camp. 438. (n) Johnson v. Barm, 4 T. R. 1.

(0) Shillito v. Theed, 7 Bing. 405. (p) Goodburn v. Marley, Stra. 1159; Alcinbrook v. Hall, 2 Wils. 309; Clayton v. Jennings, 2 Bl. R. 706.

(9) As to the form of the declaration, see analogous case, Thistlewood Cracroft, 1 M. & Sel. 500.

Jobbing in omnium is within the above enactment (r). But it has been held that dealing in lottery produces (s), or in Columbian bonds (t), or gambling in foreign stocks (u), is not prohibited thereby. And although the statute requires that persons selling stock shall be actually possessed thereof at the time of the contract, yet it is sufficient if a principal selling stock through the medium of a broker be, at the time of the sale, possessed thereof, although the broker did not, at the time of the bargain, disclose the name of his principal (x).

A bill of exchange or promissory note given upon a stockjobbing transaction, is valid in the hands of a party who afterwards took it before it was due, for value, and without notice of the illegal consideration (y).

V. ILLEGAL COMPANIES OR ASSOCIATIONS.

By the 6 Geo. IV. c. 91, the 18th, 19th, and 20th sections of the 6 Geo. I. c. 18, called the Bubble Act, are repealed. The act of 6 Geo. IV. recites, "That it is expedient that the several undertakings, attempts, practices, acts, matters and things, in the said act of 6 Geo. I. mentioned, should be adjudged and dealt with in like manner as the same might have been judged and dealt with according to the common law, notwithstanding the said act." This repealing clause, therefore, leaves in full operation the common law relative to such schemes as, whether mentioned in the 6 Geo. I., or not, can be considered injurious to the public welfare (2). And as the several enactments in the statute of Geo. I. which have been repealed may be considered declaratory of the common law, with regard to the invalidity of undertakings

(r) Brown v. Turner, 7 T. R. 630. (s) Mortimer v. Sulkeld, 4 Camp. 42. (t) Henderson v. Bise, 3 Stark. 158. See Paterson v. Powell, ante, 716.

(u) Wells v. Porter, 3 Scott, 141; 2 Bing. N. C. 722, S. C.; Oakley v. Rigby, 3 Scott, 194; 2 Bing. N. C. 732, S. C.; Elsworth v. Cole, 2 M. & W. 31; Robson v. Fallowes, 3 Bing. N. C. 392; 4 Scott, 43, S. C.; Morgan v. Pebrer, 3 Bing. N. C. 457; 4 Scott, 230. Nor is gambling in foreign funds illegal at common law; id.

(x) Child v. Morley, 8 T. R. 610. As to an action by a broker against his

principal to recover differences paid for him, see ante, 592, 624; and Sutton v. Tatham, 10 Ad. & E. 27.

(y) Day v. Stuart, 6 Bing. 109; 3 M. & P. 334; Greenland v. Dyer, 2 M. & Ryl. 422; Amory v. Merryweather, 2 B. & C. 573; 4 D. & R. 86, S. C. See Rawlings v. Hall, 1 C. & P. 11, as to evidence, &c.

(z) See per Best, C. J., Duvergier v. Fellowes, 2 M. & P. 412; 5 Bing. 248, S. C.; 10 B. & C. 826, S. C. in error; and see per Lord Ellenborough, Rex v. Dodd, 9 East, 527.

of the description therein mentioned, it is deemed advisable to notice those enactments (a).

By the 18th section of the act 6 Geo. I. it is provided, "that the undertakings and attempts therein described, and all other public undertakings and attempts tending to the grievance, prejudice and inconvenience of the public, in their trade, commerce, or other lawful affairs, and all public subscriptions, receipts, payments, assignments, transfers, pretended assignments and transfers, and all other matters and things whatsoever for furthering, countenancing or proceeding in any such undertaking or attempt; and more particularly the acting, or presuming to act, as a corporate body or bodies; the raising or pretending to raise transferable stock or stocks; the transferring or pretending to transfer or assign any share or shares in such stock or stocks, without legal authority, either by act of parliament, or by any charter from the crown, to warrant such acting as a body corporate; or to raise such transferable stock or stocks, or to transfer shares therein; and all acting or pretending to act under any charter formerly granted from the crown, for particular or special purposes therein expressed, by persons who do or shall use or endeavour to use the same charters for raising a capital stock, or for making transfers or assignments, or pretended transfers or assignments of such stock, not intended or designed by such charter to be raised or transferred; and all acting or pretending to act under any obsolete charter, become void or voidable by nonuser or abuser, or for want of making lawful elections which were necessary to continue the corporation thereby intended; shall for ever be deemed to be illegal and void, and shall not be practised, or in any wise put in execution."

By the 19th section, all such unlawful undertakings were to be deemed common nuisances.

And the 20th section pointed out the mode in which merchants and traders might have their remedy against the undertakers. The 57 Geo. III. c. 99, restrains spiritual persons from being

(a) See the decisions upon the act, The King v. Webb and others, 14 East, 406; Pratt v. Hutchinson, 15 East, 511; Davies v. Hawkins, 3 M. & Sel. 488; Nockels v. Crosby, 3 B. & C. 814; 5 D. & R. 751, S. C. As to a company formed by subscription, and having numerous transferable shares to carry on a distillery according to a

process for which a patent had been obtained, see Duvergier v. Fellowes, ante, 718, n. (). Associations of insurers, Strong v. Harvey, 3 Bing. 304. As to subscriptions to a loan to a nonexistent state, M'Gregor v. Lowe, 1 C. & P. 200; Ry. & M. 57, S. C.; see as to a monopoly contract, Duvergier v. Fellowes, supra.