or cribbage, &c. (n). recovered back in an

And money fairly lost at play cannot be action of debt for money had and received,

not founded on the statute (o).

It seems that cricket (p) and chess, and bowls, and other games of skill, are games within the statute of Anne (q).

In order to render a betting void and illegal within the statute of Anne, it is necessary that it appear that the party on whose side the bet was made, was playing at a game within the meaning of the act. Therefore, in Lynall v. Longbotham (r), the court held, that although a foot race is a game within the statute (s), yet a bet thereon, though above 107., is not invalid, unless it appear that the pedestrian was playing at such game; as it ought to be negatived that he had ran for diversion or exercise, and it is not to be presumed he was running for a wager, or was concerned in the bet.

Where, in assumpsit for work and labour, the defendant, having retained the plaintiff to run a race for him, which was accordingly done, it appeared that the race was an illegal one; it was held that the plaintiff was not entitled to recover (†).

It is observable, that the statute of Charles declares that the contract for money lost at play, and all securities for it, shall be void; but the statute of Anne is confined to securities for money lent, or won, at play (u). Upon which it has been held, that although both the security and contract are void as to money won at play, only the security is void as to money lent at play; that the contract remains, and the lender may maintain his action for the money lent, although it were advanced at the time and place of play; it not appearing to have been advanced to play with, or for the purpose of play (x). In a subsequent case, where the plaintiff having won all the defendant's ready money, lent him

(p) Jeffreys v. Walter, 1 Wils. 220. (q) Sigel v. Jebb, 3 Stark. R. 1. Backgammon seems to be a lawful game, 13 G. 2, c. 19, s. 19. See Bac. Ab. Gaming (B); Billiards, see Rex v. Badford, Lofft. 29.

(r) 2 Wils. 36.

Cowp. 281.

(t) Coates v. Hatton, 3 Stark. N. P. C. 61.

(u) It will be observed that the first section of the statute of Anne, relative to securities for money won at play, makes no mention of the amount, so that a security even for less than 104. won at play would seem to be void.

(x) Robinson v. Blund, 2 Burr. 1077; 1 Bla. R. 234, 256, 260, S. C.; Phil(s) And see Brown v. Berkely, lips v. Cockayne, 3 Camp. 120.

ten guineas at a time, and won them, till the defendant had borrowed a large sum, it was held that the money lent was recoverable (y). But, as observed by Wilmot, Justice (z), this appears to be a fraud on the act. And it would now, in all probability, be considered that money knowingly lent for the purpose of enabling the borrower illegally to game, or play therewith, is not recoverable (a).

It has been held, that an action lies to recover money paid by the plaintiff, at the defendant's request, to a person to whom the plaintiff had lost the amount on an illegal bet upon a horse-race (b).

A bill of exchange, or promissory note, void in its origin under the statute 9 Anne, cannot be enforced, even in the hands of a bona fide indorsee for value, against the acceptor or maker (c). But the drawer of a bill, accepted for a gaming debt, won by him of the drawer, but indorsed to the plaintiff for a valuable consideration, cannot set up the gaming as a defence; for to allow this defence to the drawer, would be to protect the party who had violated the provisions of the act (d).

By the statute 14 G. 3, 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, or by way of gaming or wagering. Upon this enactment it was decided in Paterson v. Powell (e), that an engagement, in consideration of 40 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.

Horse-racing. This is regulated by the statutes 13 G. 2, c. 19, and 18 G. 2, 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 horseracing is gaming within the statute of Anne (ƒ).

(y) Barjeau v. Walmsley, 2 Stra. 1249; Leapridge v. King, Peak, Add. C. 32.

(z) Robinson v. Bland, 1 Bla. R. 261.

(a) And see Webb v. Brooke, 3 Taunt. 6; Cannan v. Bryce, 3 B. & Ald. 184; ante, 466, 5.

(b) Alcinbrook v. Hall, 2 Wils. 309. See, however, ante, 472, 473.

(c) Bowyer v. Bampton, Stra. 1155;

Henderson v. Benson, 8 Price, 281; Shillito v. Theed, 7 Bing. 405; Lowe v. Waller, Doug. 736. As to a valid substituted or renewed security, see George v. Stanley, 4 Taunt. 683; and

ante.

(d) Edwards v. Dick, 4 B. & Al. 212; Day v. Stuart, 6 Bing. 109.

(e) 2 Moor & S. 399; 9 Bing. 320. (f) Alcinbrook v. Hall, 2 Wils. 309; Goodburn v. Marley, Stra. 1159.

The 13 G. 2 provides, that no horse shall be entered, or start or run for any plate, except by the owner (g); 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 50l. 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 (h).

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

If the race be for 50l., or more, according to the statute 13 G. 2, a bet thereon is good, as not contravening the statute 9 Anne, if neither of the sums betted amount to 107. (k). But if the prize be not of the value of 50%., no bet thereon for any sum is valid (4). And, though the race be valid, if either of the bets amount to or exceed 107., neither of such bets can be enforced (m); because, as the bet beyond the limited sum cannot be recovered, there is no mutuality (n).

4thly. STOCK JOBBING.

The statute 7G. 2, c. 8 (made perpetual by 10 G. 2, 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 puffs, 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,

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

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

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

(k) Good v. Elliott, 3 T. R. 705; M'Allester v. Haden, 2 Camp. 438. (1) Johnson v. Barm, 4 T. R. 1. (m) Shillito v. Theed, 7 Bing. 405. (n) Goodburn v. Marley, Stra. 1159; Aleinbrook v. Hall, 2 Wils. 309; Clayton v. Jennings, 2 Bl. R. 706.

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 (o); 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.

Jobbing in omnium is within the above enactment (p). But it has been held that dealing in lottery produces (q), or in Columbian bonds (r), 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 (s).

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 (t).

5thly. ILLEGAL COMPANIES OR ASSOCIATIONS.

By the 6 G. 4, c. 91, the 18th, 19th, and 20th sections of the 6 G. 1, c. 18, called the Bubble Act, are repealed. The act of 6 G. 4, recites, "That it is expedient that the several undertakings, attempts, practices, acts, matters, and things in the said act of 6 Geo. 1 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 com

(0) As to the form of the declaration, see analogous case, Thistlewood v. Cracraft, 1 M. & Sel. 500.

(p) Brown v. Turner, 7 T. R. 630. (q) Mortimer v. Salkeld, 4 Camp. 42. (r) Henderson v. Bise, 3 Stark. 158. See Paterson v. Powell, ante, 542.

(s) 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, 474.

(t) 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.

mon law relative to such schemes as, whether mentioned in the 6 Geo. 1, or not, can be considered injurious to the public welfare (u). And, as the several enactments in the statute of Geo. 1, which have been repealed, may be considered declaratory of the common law, with regard to the invalidity of undertakings of the description therein mentioned, it is deemed advisable to notice those enactments (x).

"that

By the 18th section of the act 6 Geo. 1, it is provided, 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 con

(u) 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.

(x) 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, ubi suprà. Associations of insurers; Strong v. Harvey, 3 Bing. 304. As to subscriptions to a loan to a non-existent state; M'Gregor v. Lowe, 1 C. & P. 200; Ry. & M. 57, S. C.; see as to a monopoly contract, Duvergier v. Fellowes, supra.