TIT. I. wager, even upon a lawful game, race, sport, PART II. pastime, or exercise, from recovering the money won, from the loser. But, upon the same principle of the repudiation of such contracts by the policy of the law, any person may get back his own deposit on an illegal consideration, or on a wager of any kind, from a stakeholder, before the event, or even after the event, if it has not been paid over by him, or if it has been paid over to the winner, after notice not to pay it over. (Ad. Con. 7th ed. 210; Rosc. Evid. 12th ed. 530; Chit. Con. 9th ed. 579, 580; Hampden v. Walsh, L. R. 1 Batson v. Newman, L. R. 1 C. P. D. (Ap.) 573; Ad. Con. 7th ed. 210; Trimble v. Hill, L. R. 5 Ap. Cas. 342.) 221. Q. B. D. 189; Notes, bills, and mortgages for gaming debts are to be deemed for an illegal consideration, and not absolutely void, where such bills or notes are not overdue, and such securities are in the hands of a bonâ fide holder or transferee without notice, and for valuable consideration. (8 & 9 Vict. c. 109, s. 15; Chit. Con. 9th ed. 649; Ad. Con. 7th ed. 210; Rosc. Evid. 12th ed. 358.) 222. It has been held, to the disgrace of the law and the ruin of many, that money knowingly lent to pay a gaming debt, if the game TIT. I. PART II. were a lawful one, or to play a lawful game, may be recovered. (Chit. Con. 9th ed. 650; Ad. Con. 6th ed. 894-5; Rosc. Evid. 12th ed. 575-6.) Thus, what the Legislature has prohibited to be done directly, the Courts have allowed to be done indirectly! 223. There is nothing illegal by the Common Law or by the stat. 8 & 9 Vict. c. 109, s. 18, in a person employing a broker to speculate for him on the Stock Exchange, though he, to the knowledge of the broker, does not intend to accept the stock bought for him, or to deliver the stock sold for him, but expects the broker to arrange matters that nothing but differences should be payable by him. (Thacker v. Hardy, L. R. 4 Q. B. D. (Ap.) 685.) 223a. Where one person advances money to another, to be employed by him (with some of his own money) in betting on horses, and a proportion of the winnings is to be paid to the person so advancing money, he is entitled to sue the other person on a note given in respect of the money. (Beeston v. Beeston, L. R. 1 Ex. D. 13.) But where a person, called "a tipster," gives information as to a horse likely to win, and it is agreed that if the person to whom the information is given backs the horse, and the horse wins, the in formant shall have a certain amount out of the winnings, but that if the horse loses the informant shall pay a certain sum to the other party, this is void as a wagering contract. (Higginson v. Simpson, L. R. 2 C. P. D. 76.) 224. if PART II. TIT. I. between the subscribers to a charity. A contract between a plaintiff and de- Contract fendant, two subscribers to a charity, that the plaintiff will give a certain number of' votes for the defendant's candidate, the defendant will give a like number of votes at a subsequent election for the candidate of the plaintiff, is a contract founded on a valid legal consideration. (Bolton v. Madden, L. R. 9 Q. B. 55.) 225. between voidable regards con Wherever any contract or conveyance is Distinction void, either by a positive law or upon prin- void ad ciples of public policy, it is deemed incapable tions, as of confirmation; it being a maxim, Quod ab firmation. initio non valet, in tractu temporis non convalescit. But where it is merely voidable, or turns upon circumstances of undue advantage, surprise or imposition, there it is valid until it is rescinded; and if it is deliberately and upon full examination confirmed by the parties, it will be valid. (Sm. Eq. Manual, 13th ed. par. 146, 147.) 226. Money paid under an executory illegal Recovery of contract may be recovered before completion, tract. money paid under a col. PART II. in an action for money had and received, TIT. I. Recovery of goods delivered for a even though the parties are in pari delicto. Money paid under an executed illegal contract may be recovered back, when the two parties are not in pari delicto, and the party who paid the money is the more innocent of the two. But when both parties are in pari delicto, money paid cannot be recovered back; for the maxim is that "in pari delicto, potior est conditio possidentis." (Taylor v. Chester, L. R. 4 Q. B. 309.) When a contract is void, though not illegal, money paid under it may in general be recovered back on the ground of failure of consideration. But where the purchaser has got the sort of thing he bargained for, he cannot recover back the price, though it may turn out of no value. (Ad. Con. 910-912; Chit. Con. 575-7; Rosc. 413, 414; Selw. 93-100; 2 Sm. L. C. 457-8.) 227. fraudulent purpose, purpose. If goods are delivered for an unlawful which is not carried out (as where goods are made over to defraud creditors, but no bill of sale is executed), the owner may repudiate the purpose, and recover the goods, against the person to whom they were made over, and anyone claiming under him, with notice. (Taylor v. Bowers, L. R. 1 Q. B. D. (Ap.) 291.) 228. TIT. I. Motive or animus in cases of In an action on contract, the motive or PART II. animus of the defendant is immaterial; because the breach of the agreement renders the party guilty of it liable, ipso facto, for breach of the direct pecuniary loss resulting therefrom; and the damages are limited to that. (Broom Com. 342-3.) 229. contract. of a con As a general rule, prior to the Supreme Assignment Court of Judicature Act, 1873 (which came tract. into operation on the 2nd day of November, 1875), a contract was not assignable at Law. The instrument (if any) of contract, indeed, passed to the assignee, so that he might maintain an action for the recovery of the document. But the benefit of a contract could not be transferred at Law, so as to put the transferee in the place of the transferor, and entitle the transferee to maintain an action upon the contract in his own name; but the transferee might sue in the name of the transferor. Thus, if a bond were assigned, the assignee could not sue upon it (unless it was one of those bonds which the Legislature has excepted from the general rule); but he could sue in the name of the obligee. And if a personal chattel was assigned, the assignee could not sue on a covenant entered into by another person with the assignor respecting it. (Sm. Con. |