ment by default, or confessing a judgment in favour of a bona fide Illegality of holder, it is too late to object to the legality of the consideration(a). when it viticonsideration, It is not usury, though improper, for an acceptor to discount his ates. own acceptance at a premium (b). 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 (c) (1).

A gaming consideration is declared illegal by the statute 16 Gaming, &c. Car. 2. c. 7. and 9 Ann. c. 14. (d). The first statute avoids all securities, whether written or verbal, given to secure any sum of money exceeding 100l 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 10 (e). 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

(a) Shepherd v. Charter, 4 T. R. 275.-George v. Stanley, 4 Taunt. 683.-See post, 101. n. 2. post, 106. n. 4.

(6) Barclay v. Walmsley, 4 East. 55.

(c) 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 v. Power, id. 195.

(d) 1 Pow. 207.—Bac. Ab. tit. Gaming.

(e) Bulling v. Frost, 1 Esp. Rep. 235.

(1) A contract usurious in its inception cannot be afterwards rendered valid, even in the hands of a bona fide indorsee without notice of the usury. Wilkie v. Roosevelt, 3 John. Ca. 206. Payne v. Trezevant, 1 Bay's Rep. 23. Though an usurious note be void in the hands of a bona fide holder, yet a new security given to such holder for the usurious note is good. Stewart v. Eden, 2 Caines' Rep. 150. Chadbourne v. Watts, 10 Mass. Rep. 121. Kilburn Bradley, 3 Day's Rep. 268. Jackson v. Henry, 10 John. Rep. 185. And a judgment in the hands of a bona fide assignee, it seems, is not affected by usury in the original transaction. Wardwell v. Eden,, 2 John. Cas. 268. S. C. 1 John. Rep. 531. note.-A security originally valid cannot be invalidated by a subsequent usurious transaction between the original parties or privies. Bush v. Livingston, 2 Caines' Cas. in Err., 66.; and no usurious transactions between intermediate parties can affect the title to a note in the hands of a bona fide holder, Foltz v. May, 1 Bay's Rep. 486.

It is not within the scope of these notes to state the general doctrine as to what constitutes usury. But the learned reader will find valuable information as to the doctrine of usury upon discount of notes in the following cases: Atkinson v. Scott's Er. 1 Bay's Rep. 307. Churchhill v. Suter, 4 Mass. Rep. 156. Portland Bank v. Storer, 7 Mass. Rep. 433. Jones v. Hake, 2 John. Cas, 60. Wilkie v. Roosevelt, Payne v. Trezevant, Musgrove v.. Gibbs, 1 Dall. Rep. 216. Wycoff v. Longhead, 2 Dall. Rep. 92. Northampton Bank v. Allen, 10 Mass. Rep. 284. Thompson v. Thompson, 8 Mass. Rep. 135. Munn v. The Commission Company, 15 John. Rep. 44. Bennet v. Smith & Phelps. 15. John. Rep. 355.

consideration,

when it viti

ates.

Illegality of 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 [* 101] any person *or persons so gaming or abetting as aforesaid, or that shall, during such play, so play or bett, shall be utterly void, frustrate and of none effect, to all intents and purposes whatsoever, any statute, law or usage, to the contrary thereof, in anywise notwithstanding." Under these statutes, a bill of exchange or promissory note given for a gambling debt is void, even in the hands of a bona fide holder (a). But as in the case of usury, a renewed security given for a gambling debt will be valid in the hands of a bona fide holder (b).

A horse-race for a plate under 50l, is illegal (c), but a deposit of 251 a side is sufficient (d). So gaming in the lottery is illegal (e); and a stock-jobbing transaction is declared void by the statute 7 Geo. 2. c. 8. (ƒ); and a bill of exchange, given in respect of such a transaction, is invalid in the hands of a person who receives it [102] after it is due, or with notice of the circumstances (g). *Promissory notes given by a stock-broker for the balance of an account of money advanced to him, to be employed in stock-jobbing trans

(a) Boyer v. Bampton, 2 Stra. 1155. Several notes given by Bampton to Church, for money lent to game with, were indorsed by Church to the plaintiff, for a full and valuable consideration, and the plaintiff had no knowledge that any part of the consideration from Church to Bampton was money lent for gaming; and after two arguments upon a case reserved, the court held that the plaintiff could not maintain the action, for it would be making the notes of use to the lender if he could pay his debts with them, and it would tend to evade the act, on account of the difficulty of proving notice on an indorsee, and the plaintiff would not be without remedy, for he might sue Church upon his indorsement; and see Bayl. 237.

(b) George v. Stanley, 4 Taunt. 683. The defendant gave the bills in question for the amount of a gaming debt, which when dure he renewed with the plaintiff the holder, and when the last-mentioned bills became due, executed a warrant of attorney, and confessed a judgment for the amount, whereon execution being levied, a rule nisi was obtained to have the money restored and the warrant of attorney cancelled, but upon cause being shewn, the court held the defendant ought to have availed himself of this ground of defence when he was applied to for the payment of the first bills, and discharged the rule, but permitted him to try an issue whether the plaintiff were implicated.

(c) 13 G. 2. c. 19.-18 G. 2. c. 34.-Whaley v. Pajot, 2 Bos. & Pul. 51.— Robson v. Hall, Peake's Ca. Ni. Pri. 127.

(d) Bidmead v. Gale, 4 Burr. 2432.

(e) Deey v. Shee, 2 T. R. 617.-Seddons v. Stratford, Peake's Ca. Ni. Pri. 215.

(f) Faik ney v. Reynous, 4 Burr. 2069.-Sanders v. Kentish, 8 T. R. 162. -Tate v. Wellings, 3 T. R. 531.

(g) Brown v. Turner, 7 T. R. 630.-Aubert v. Maze, 2 Bos. & Pul. 374. Steers v. Lashley, 6 T. R. 61.

consideration,

actions, against the statute 7 Geo. 2. c. 8. part of the considera- Illegality of tion consisting of the profits on these transactions, proof under his when it vitibankruptcy was restrained to the residue, viz. the money received, ates. which he had applied to his own use(a). So a gaming policy on skips or lives, or other events, without being interested therein, is invalid (b).

tracts decla

Trading against the laws of the East India Company (c), or the Other conRussian Company(d), is also illegal. And the sale of an office (e) red void by or of a vote, or bribery at an election is invalid(f). So a Simoni- contract. acal contract. g); a stipulation to a Sheriff, in consideration of ease and favour (h); a contract in consideration of signing a bankrupt's certificate (i); an illegal insurance in the lottery (k); and a contract to ransom any British ship or goods captured by an enemy are declared unlawful (1).

Besides these and many other cases of contracts and securities, expressly declared by statute to be void, there are other cases in which the legislature have prohibited a transaction, and a bill or note having been given to carry into effect such prohibited con- [* 103 ] tract, the instrument has been held void. Thus a bill of exchange, part of the consideration for which was spirituous liquor, sold in quantities of less than twenty shillings value is wholly void though the other part of the consideration was money lent, because such sale of spirits is contrary to the statute of 24 Geo. 2. c. 40(m). And for the same reason no action can be supported by the plaintiff on a note given to him by the defendant as an apprentice fee, if it ap

(a) Ex parte Bulmer, 13 Ves. jun. 313.

(b) 19 Geo. 2. c. 37.-Kent v. Bird, Cowp. 583.-Roebuck v. Hammerton, id. 737.-14 Geo. 3. c. 48.-Nantes, v. Thompson, 2 East. 385.

(c) Lightfoot v. Tenant, 1 Bos. & Pul. 552.

(d) Grose v. La Page, 1 Holt C. N. P. 105.

(e) 5 Ed. 6. c. 16.-Blachford v. Preston, 8 T. R. 93.-Parsons v. Thompson, 1 Hen. Bla. 322.-Layng v. Paine, Willes, 571. Com. Dig. "Officer," K. 1.-Bac. Ab. "Officer," F.-Stackpole v. Earle, 2 Wils. 133.

(2 Geo. 2. c. 24.-Anonymous, Loft. 552.-Sulston v. Norton, 3 Burr. 1235.-The King v. Pitt, 1 Bla. Rep. 380.-Allen v. Hearn, 1 T. R. 56.

(g) 31 Eliz. c. 6.-Totteridge v. Mackally, Sir W. Jones. 341.Co. Lit. 206. b,-Layng v. Paine, Willes, 575. n. a.-Bac. Ab. “Simony."

(h) 23 H. 6. c. 9.—Rogers v. Reeves, 1 T. R. 418.-Samuel v. Evans, 2 T. R. 569.—Sell. Prac. 129 to 137.-1 Pow. 173.

(i) 5 Geo. 2. c. 30. s. 11.-Smith v. Bromley, Dougl. 696.-Cockshott v. Bennet, 2 T. R. 763.-Nerot v. Wallace, 3 T. R. 17.-Sumner v. Brady, 1 Hen. Bla. 647.

(k) Wyat v. Bulmer, 2 Esp. Rep. 538.

(1)Statute 45 Geo. 3. c. 72.-Webb v. Brooke, 3 Taunt. 6.

(m) Scott v. Gillmore, 3 Taunt. 226.; but see Spencer v. Smith, 3 Campb. 9.

ates.

Illegality of pear that the indenture executed was void by the statute 8 Anne, consideration, when it viti. c. 9. for want of insertion of such premium therein, and a proper stamp in respect to the same, although the plaintiff did in fact, maintain the apprentice for some time, and until he absconded (a) But it is no objection to an action on a promissory note, that it was given as part of the consideration of an indenture of apprenticeship for less than seven years, by being antedated, such indenture being by the statute of Elizabeth, only voidable and not void (b).

Where a third person, having given value for a bill, knew at the time he became the holder, that it was originally founded on an illegal transaction (c), or where a person became holder of such a bill after it became due, he cannot recover on it (d). However a person who at the request of the holder of a bill indorses it, and is obliged to pay the contents to a bona fide holder, may recover the money paid, from any person whose name is on it (e).

In those cases in which the legislature has declared, that the [104] illegality of the contract, or consideration, *shall make the bill or

note void, (as where it is made in consideration of signing a bankrupt's certificate (ƒ), or for money lost by gaming, &c. (g), or før money lent on an usurious contract (h), for the ransom of a ship captured (i), or made, indorsed, &c. in France during the war, contrary to the S4 Geo. 3. c. 9. s 4. (k). ) the defendant may insist on such illegality, though the plaintiff, or some party between him and the defendant took the bill bona fide, and gave a valuable consideration for it. And the innocent holder can in such case only resort to the party from whom he received the bill, &c(1), and

(a) Jackson v. Warwick, 7 T. R. 121.

(6) Grant v. Welchman, 16 East. 207.

(c) Steers v. Lashley, 6 T. R. 61.-1 Esp. Rep. 166. S. C.-Wyat v. Bulmer, 2 Esp. Rep. 538.-Brown v. Turner, id. 631.—7 T. R. 630. S. C.— Feise . Randall, 6 T. R. 146.

(d) Brown v. Turner, 7 T. R. 630.

(e) Seddons v. Stratford, Peake's Ni. Pri. R. 215.-Petrie v. Hannay, 3 T. R. 424.-Aubert v. Maze, 2 Bos. & Pul. 371.

(f) 5 Geo. 2. c. 30. s. 11.-Smith v. Bromley, Dougl. 696.—Summer. v. Brady, 1 Hen. Bla. 647.-Bayl. 237.-Ante, 102. n. 9.

(g) 9 Anne, c. 14. 8. 1.-Bowyer v. Bampton, Stra. 1155.—Bul. Ni. Pri. 274. Hussey v. Jacob, Carth. 356.-Bayl. 237.-Ante, 101. note 1.

(h) 12 Anne, st. 2. c. 16.-Lowe v. Waller. Dougl. 736.-Cuthbert v. Haley, 8 T. R. 392.—Parr v. Eliason, 1 East. 92. 94.—Bayl. 237. Ante, 98. (i) 45 G. 3. c. 72. s. 16, 17.-Webb v. Brooke, 3 Taunt. 6.—Ante, 102. (k) Bendelack v. Morier, 2 Hen. Bla. 338.

(1) On this point see Payne v. Trezevant, 2 Bay's Rep. 23. Wiggin v. Bush, 12 John. Rep. 306.

A bill of exchange expressed to be collateral to a ransom bill, is a contract upon which an action may be sustained at Common Law, the plaintiff and payee being an alien friend. Maisonnaire v. Keating, 2 Gallison, 325:

consideration,

then he cannot recover upon the same, but only on the original legality of consideration (a); and a bill of exchange is void in the hands of when it vitia bona fide indorsee, if it were drawn in consequence of an usu- ates. rious agreement for discounting it, although the drawer, to whose order it was payable, was not privy to this agreement (b). And it has been recently decided, that if the payee of a bill of exchange indorse it upon an usurious contract made at the time of such indorsement, a bona fide holder cannot afterwards recover upon it against the acceptor, because such holder must claim title through such first indorser (c).

*But unless it has been so expressly declared by the legislature, [* 105 ] illegality of consideration will be no defence in an action at the

suit of a bona fide holder, without notice of the illegality (d) unless

he obtained the bill after it became due (e).

Thus in an action by the indorsee against the maker of a promissory note, the defence insisted on was, that the note had been given for hits against the defendant in a lottery insurance: Lord Kenyon, Chief Justice thought the plaintiff was entitled to recover, observing that the innocent indorsee of a gaming note, or note given on an usurious contract, could not recover, but that in no other case could the innocent indorsee be deprived of his remedy on the note; and that a contrary determination would shake paper credit to the foundation (f). And a broker receiving an exorbitant brokerage on

(a) Id. ibid.-Boyer v. Bampton, Stra. 1155.-Wyat . Bulmer, 2 Esp. Rep. 538, 9.-Whitham v. Lee, 4 Esp. Rep. 264. and see ante, 99. n. 3. (6) Acland v. Pearce, 2 Campb. 599. and see ante, 99. n. 3.

(c) Lowes and another v. Mazzeredo and others, 1 Stark. 385. This was an action by the plaintiffs as indorsees, against the defendants as acceptors of a bill of exchange, the bill was drawn by one G. Lowes, and indorsed to Sir M. B. and by him to Ambrose, and then to the plaintiffs. The defence was usury in the first indorsement, and which was proved. Lord Ellenborough was of opinion, that the plaintiffs were not entitled to recover upon the bill, since they were obliged to claim through an indorsement which had been vitiated by usury; but, upon the counsel for the plaintiffs insisting on the case of Parr v. Eliason, 1 East. 92. his lordship permitted the plaintiffs to take a verdict, subject to a motion to enter a nonsuit. A rule nisi having been obtained, and cause shewn, the court were of opinion, that the case of Parr v. Eliason, was distinguishable from this, and might be supported upon other grounds; and that the indorsement was entirely avoided by the statute of Usury, and could not be dismissed for one purpose and retained for another, and that after the case of Lowe v. Waller, (ante, 99.) had been acted upon so long, its foundation could not now be inquired into.

(d) Wyat v. Bulmer, 2 Esp. Rep. 538.-Brown v. Turner, 7 T. R, 630. -Le Franc v. Dalbiac, Sel, Ca. 71.

(e) Brown v. Turner, 7 T. R. 630.

Winstanley v. Bowden, Middlesex sittings after M. T. 41 G. 3. B. R. 1 Selw. 2d edit, 402. id. 4th edit. 370.