CHAPTER time (c). A contract in general restraint of marriage is void (d), as a bond given by a widow conditional for the payment of a sum of money if she should marry again (e). And it makes no difference that the restraint is only for a limited period, as, for six years (f). An undertaking for reward to procure a marriage between two parties is void (g). A contract tending to the injury of the revenue, by evading or violating the customs and excise laws, is illegal (h). But if a trader sell goods with the mere knowledge that the purchaser intends to make an illegal use of them, without in any way lending his aid to the effectuation of the unlawful purpose, he may sustain an action on the contract (i). Considerations impeding the course of public justice, as, dropping a criminal prosecution for a felony or a public misdemeanor, or suppressing evidence, are illegal considerations (k). But it has been held that compounding a private misdemeanor is a good consideration for a note (7). A wager on the result of a criminal prosecution is illegal (m). A note, given after conviction to the prosecutor, for the expenses of the prosecution, the amount of which is settled by the Court, is legal (n). So, though the particulars of the arrangement are not communicated to the Court, and sanctioned by them (o). And the substitution of a good bill for a forged one, at the instance of the forger, if unaccompanied with any stipulation to stifle a prosecution for forgery, is not illegal (p). one small and reasonable, and the (c) Pemberton v. Vaughan, 12 (d) Lowe v. Peers, 4 Burr. 2225. (e) Baker v. White, 2 Vern. 215. (f) Hartley v. Rice, 10 East, 22; 10 R. R. 228. (g) Hall v. Potter, 3 Lev. 411; Roberts v. Roberts, 3 P. Wms. 66; Com. Dig. Chancery, 3 Z. 8. (h) Biggs v. Lawrence, 3 T. R. 454; 1 R. R. 740; Vandyck v. Hewitt, 1 East, 79: 5 R. R. 516 ; Taylor v. Crowland Gas Company, 10 Exch. 293. (i) Hodgson v. Temple, 5 Taunt. 181; 14 R. R. 738. (k) Nerot v. Wallace, 3 T. R. 17; Contracts respecting the Fallows v. Taylor, 7 T. R. 475; Edgcombe v. Rodd, 5 East, 294; 7 R. R. 700. Merely refraining from prosecuting, on taking from a defaulting debtor a bill indorsed by him, is not necessarily compounding, Flower v. Sadler, L.R., 9 Q. B. D. 83; and the indorsee could recover against an acceptor for value, even if it were so, ibid. C. A., 10 Q. B. D. 573. (1) Drage v. Ibberson, 2 Esp. 643; and see Coppock v. Bower, 4 M. & W. 361. sale of public offices are for the most part void at common law (q), as well as by statute. Any contract tending to cause a neglect of duty in a public officer is illegal. Thus, though the 6 Geo. 2, c. 31, authorizes parish officers to take security from the putative father of a bastard child to indemnify the parish, it is not lawful for them to take an absolute promissory note for a sum certain, and such a note is void. "It is a shocking consideration," observes Lord Ellenborough," that by means of such a security as this, the parish officers, who have a public duty imposed upon them to take care that the father shall make a proper provision for the maintenance of the child, acquire an interest that the child should live as short a time as possible (). Contracts with a public enemy are illegal; and a bill drawn by an alien enemy on his debtor here, and indorsed to the plaintiff, a British subject resident in the hostile country, cannot be recovered on, though the plaintiff do not sue till the return of peace, and though he were resident at the time of taking the bill in the hostile country (s). But where a British prisoner in France drew a bill on an English subject, and indorsed it to the plaintiff, then an alien enemy, it was held, that after the return of peace the plaintiff might recover (1). And a bill drawn by a British prisoner, in favour of an alien enemy, cannot be enforced by the payee. But by the Naturalization Act, 1870 (33 Vict. c. 14), aliens can hold both real and personal property. CHAPTER XI. Among the considerations now or formerly illegal by CONSIDERAstatute are the following: 1. Usury. The English statutes on this subject are repealed. The decisions on them, however, are still not unimportant with a view to general principles. Moreover, usury laws exist in the United States and in almost all foreign countries. In France and Holland they have been repealed, but re-enacted. TIONS Usury. 2. Gaming considerations. The old statute 16 Car. 2, Gaming. c. 7, avoided all securities, written or oral, given to secure any sum of money exceeding 1007. lost at play (u). And the 9 Anne, c. 14, expressly avoided all written contracts for any sum of money won at play, or by betting at play, (4) Richardson v. Mellish, 2 Bing. 229; 9 Moore, 435; 27 R. R. 603. (r) Cole v. Gower, 6 East, 110. (8) Willison v. Patteson, 7 Taunt. 440; 18 R. R. 525. (1) Antoine v. Morshead, 6 Taunt. 237; 1 Marsh. 558; 16 R. R. 610. (u) See Bentinck v. Connop, 5 Q. B. 693. CHAPTER or lent for playing or betting (a); and by subjecting to the animadversion of criminal justice all winnings above 107., it impliedly avoided all contracts to enforce them also (y). Both acts avoided judgments for gaming debts, but the judgments to which they refer are voluntary judgments given by the loser, and not judgments obtained by an adverse action (z). Any game, whether of skill or chance, was within the acts (a). But both these acts are now repealed by the 8 & 9 Vict. c. 109, s. 15, except so much of the statute of Anne as was altered by the 5 & 6 Will. 4, c. 41. The statute 8 & 9 Vict. c. 109, makes cheating at play an offence indictable as obtaining money under false pretences (b). It further makes all gaming contracts, written or oral, null and void (c). By the Gaming Act [1892], 55 Vict. c. 9, any promise express or implied to repay a third party money paid in respect of a gambling transaction void under the 8 & 9 Vict., or any fee or commission, is null and void, and no action lies (d). 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, but that case finally settled that the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced” (e). 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. (r) See also 12 Geo. 2, c. 28, and 18 Geo. 2, c. 34. (y) Sect. 5; see Daintree v. Hutchinson, 10 M. & W. 85: Applegarth v. Colley, 10 M. & W. 723. (~) Lane V. Chapman, 11 Ad. & E. 966; 3 P. & D. 668; (c) Sect. 18. But not illegal See further, on the construction of the act, Parsons v. Alerander, 24 L. J., Q. B. 277; 5 E. & B. 263: Coombes v. Dibble, L. R., 1 Exch. 248: Beeston v. Berston, 1 Ex. Div. 13: distinguished in Higginson v. Simpson, 2 C. P. Div. 77; Diggle v. Higgs, 2 Ex. Div. 422. Hence, if the transactions fall within 8 & 9 Vict. any indorsee for value can recover, but if under 5 & 6 Will. only an innocent one. Lilly v. Rankin, 56 L. J.. Q. B. 248. 4 (d) Carney v. Plimmer, [1897] 1 Q. B. 634. (e) Cannany. Bryce, 3 B. & Ald. 179 22 R. R. 342: M'Kinnell v.. Robinson, 3 M. & W. 434. XI. Horse-races, though legalized by 13 Geo. 2, c. 19, and CHAPTER 18 Geo. 2, c. 34, were within the former acts against gaming (f). But a bet under 107., on a legal horse-race, Horse-racing. was valid (g); though a bill or note given to secure it would have been void (h). But if the horse-race be for a sum less than 501. (i), or above 507., but not a contest between horses running on the turf, the bet was void (k). A bill of exchange or note given for a gaming debt was Innocent formerly void, even in the hands of an innocent indorsee indorsee. 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 (1); but the drawer and indorser were and are nevertheless liable (m). The same rule of law applied to bills or notes given for the ransom of captured ships or cargoes (n); to bills or notes given by a bankrupt to his creditor to induce him. to sign the bankrupt's certificate (o). In all these cases, as well as in the case of usury, the acts of parliament avoiding bills or notes, so far as they make the instruments absolutely void, are repealed by the 5 & 6 Will. 4, c. 41, s. 1 (p). 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 (q). 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 (r). (f) Goodburn v. Marley, Stra. 1159; Clayton v. Jennings, 2 W. Bl. 706; Blarton v. Pye 2 Wils. 309; Shillito v. Theed, 7 Bing. 405; 5 M. & P. 303; 33 R. R. 522; Woolf v. Hamilton, [1898] 2 Q. B. 337. (g) M'Alister Camp. 438. V. Haden 2 (h) 9 Anne, c. 14, s. 1. (i) Johnson v. Bann, 4 T. R. 1; 2 R. R. 309. (k) Ximenes v. Jacques, 6 T. R. 499; Whalley 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. (1) Bowyer v. Bampton, 2 Stra. 1115; Shillito v. Theed, 7 Bing. 405; 5 M. & P. 303; 33 R. R. 522. (m) Ibid.; Edwards v. Dick, 4 B. & Ald. 212; 23 R. R. 255. (n) 45 Geo. 3, c. 72, s. 17. (0) 12 & 13 Vict. c. 100, s. 202; Wiggins v. Read, 13 C. B., N. S. 220; or not to oppose the order for discharge, 24 & 25 Vict. c. 134, s. 166. (p) 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. () As to the effect of this enactment, see Edmunds V. Groves, 2 M. & W. 642. Both sections of the statute are pro spective. Hitchcock v. Way, 2 N. & P. 72; 6 Ad. & El. 943; Humphreys v. Earl of (r) Hay v. Ayling, 16 Q. B. CHAPTER XI. Days. Mago [1890] 21.3.346 New security. Stockjobbing. 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 (8). Even under the old law a renewed security was good, if given to an innocent indorsee before the bill fell due (†). 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 (u). The principal provisions of the first-mentioned statute were as follow (r) :—' (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 was declared void, the money paid was made recoverable, and both parties were subject to the penalty of 5007., unless the money paid were recovered or refunded. (2.) The payment of money, instead of delivering or receiving stock, subjected to the penalty of 1007. (3.) It was supposed that contracts to buy or sell stock, of which the seller was not at the time possessed, subjected both parties to the penalty of 5007. But such contracts were afterwards held to be legal (y). It was formerly held, that money expended by another person in settling a stock-jobber's differences for him, or 423. See Fitch V. Jones, 5 ($) But it was no defence to an (t) George v. Stanley, 4 Taunt. 683. (u) Quære, 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. See Thacker v. Hardy, 4 Q. B. D.685; In re Giere, [1899] 1 Q. B. 794. Money deposited as "cover" may be recovered, Universal Stock Exchange v. Strachan, [1896] Ap. Ca. 166: Ex parte Waud, [1898] 2 Q. B. 383. (r) Transactions in foreign stock were 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. (y) Mortimer v. MCallan. T M. & W. 20: affirmed, 9 M. & W. 636. |