amount of any branch of the (42) public revenue, or selling spiritous liquors in small quantities, contrary to 24 G. 2. c. 40. 12., is an illegal consideration. (43)

So money lost by gaming, (except (44) in some part of a royal palace in which the King is then actually resident, the freehold and inheritance of which part is in the crown, and which is not in lease) or betting on the sides of persons so gaming, money knowingly lent for such gaming or betting, or money lent at the time and place of such play to any person either then gaming or betting, or who shall, during the play, play or bet, is (46) an illegal consideration.

Betting on a game at cricket, (47) a horse race, or (48) a foot race against time, is gaming within 9 Anne: insuring (49) in the lottery not.

So also the (50) ransom, or money knowingly (51) lent to enable the owner to obtain the ransom, of the ship or vessel of any British subject, or any merchandize or goods on board the same, (unless in the case of extreme necessity, to be allowed by the court of admiralty,) is an illegal consideration. (a)

[A note given by the loser to the winner of a bet on the result of an election, even after the polls are closed, is void, as being against public policy. (b) (c)]

(42) Shirley v. Sankey and others, 2 Bos. and Pull. 130. and Atherfold v. Beard, 2 Term Rep. 610.

(43) See Scott v. Gilmore, post. p. 360.

(44) 9 Ann. c. 14. § 9.

(46) 9 Ann. c. 14. § 1.

(47) Jeffryes v. Walter, 1 Wils. 220.

(48) Lynall v. Longbotham, 2 Wils. 36.

(49) Lewis v. Piercy, 1 H. Bl. 29.

(50) 45 Geo. 3. c. 72. § 16. 17.

(51) See Webb v. Brooke, post, p. 365. n. (65).

[(a) A bill of exchange, expressed to be for the ransom of a vessel, and given as security for the payment of the ransom bill, was held to be a contract on which an action might be sustained in a court of common law, the plaintiff and payee being an alien friend, and the capturing vessel belonging to a friendly nation. Maisonnaire v. Keating, 2 Gallison, 325. In an action upon such bill, the capture must be taken to be justifiable, and the ransom regular. Ib.]

[(b) Lansing v. Lansing, 8 Johns. R. 354.]

[(c) A deputy sheriff instead of taking bail of a defendant took from him as indemnity the note of a third person, which the defendant endorsed. It was held that the assignment to the officer was illegal and

If a bill or note is in part upon a consideration which the law has made illegal, and in part upon a good consideration, it has been held that the illegality will taint the whole bill or note; and that the holder, if barred at all by such illegality, will be barred in toto as to his claim on the bill or note. (52)

But if there be a privity between him and the defendant as to the good part of the consideration, he may recover that part exclusively of the bill or note. (53)

If a new bill or note be substituted for one which was given upon an illegal consideration, it will be open to the same objections as the original bill or note, unless it is reformed so as to exclude what made it illegal. (54) (a)

void, being contrary to a statute of New York; and that he could not maintain an action upon the note against the maker. Strong v. Tompkins, 8 Johns. R. 76.

By the statute of Massachusetts of 1783, c. 15, the sale of shingles either not of the statute dimensions, or not surveyed, is expressly prohibited; and in each case, under the penalty of forfeiture, and both buyer and seller are liable to a penalty, if they are sold without being surveyed. In an action on a note given in payment for shingles of a different quality from that required by the statute and not surveyed, the court said, "that the shingles, for the price of which the note in suit was given, having been sold in direct violation of the statute, the consideration of the promise was clearly illegal and insufficient to support it;"-and nonsuited the plaintiff. Wheeler v. Russell, 17 Mass. R. 258.]

(52) Scott v. Gillmore, 3 Taunt. 226. Action against acceptor: the bill was given to the keeper of a coffee-house by the drawer, partly for money lent, and partly for spirits in small quantities under 20s. worth at each time: nonsuit on the ground of 24 G. 2. c. 40. § 12. On motion for new trial, Mansfield C. J. said the statute makes the consideration illegal, not merely void, and the security is entire, and cannot be apportioned; and since it is partly given for an illegal consideration, the whole bill is void. See Spencer v. Smith, 3 Campb. 9,

N. The case does not state whether plaintiff was endorsee: if plaintiff were the coffee-house keeper, still as defendant was a stranger to the original transaction, he could not be liable otherwise than on the bill.

[It has however been held in Pennsylvania, that where a note was given partly for a good and partly for an illegal consideration, it was good as to the amount of the good consideration. Yundt v. Roberts, 5 Serg. & Raw. 139.]

(53) See Robinson v. Bland, post, p. 363. n. 60.

[(a) But where bonâ fide endorsees of a note which had been given on a usurious consideration to the payee, obtained judgment upon it, it was held that another note given to them as collateral security for the judgment, could not be avoided on account of usury in the first note; and therefore that a promise to pay the new note by a person not a

Though the new bill or note is given to an endorsee who took the first security innocently, and gave value for it. (54) Especially if he was apprised of the illegality in the first bill or note, before he took the second. (54)

1

If the new bill or note is so reformed as to exclude what made the first illegal, it will be unobjectionable. (55)

Thus if a bill or note is substituted for one which was given upon an usurious contract, it will be open to the same objections as the original bill or note, if it is not confined to what remains due for principal and legal interest. (56)

And if it were given to an endorsee of the first bill or note, who took it bonâ fide and for value, he could not before 58 G. 3. have sued any of the parties whom the usury would have protected from the first bill or note. (56)

Especially if he knew of the usury when he took the substituted security. (56)

But a bill or note substituted for one given upon an usurious contract will be valid, if it is given for principal and legal interest only; (57)

Or for what remains due for principal and legal interest, after reforming all prior payments, and excluding all usurious interest. (57)

party to it, made for a good consideration, was binding on him. Stewart v. Eden, 2 Cain R. 150.J

(54) See Chapman v. Black, infra. [See also Tuthill v. Davis, 20 Johns. R. 285.]

(55) See Preston v. Jackson, infra, note (57).

(56) Chapman v. Black, 2 Barnew. 588. White got money from Akers upon usurious interest, and endorsed to Akers a bill for £40 upon the transaction: this bill came into plaintiff's hands bonâ fide and for valuable consideration, but when it became due it was not paid, and plaintiff was apprised of the usury; it was then arranged that Akers should draw for the amount upon defendant, and that defendant should accept for the accommodation of White, which was done accordingly : nonsuit; and on rule nisi to set aside the nonsuit, and cause shewn, the court thought that as defendant really stood in the place of White, whatever would be a defence for White was also a defence for defendant, and as plaintiff's recovery in this action would enable Akers to keep the usurious interest he had received, and plaintiff by taking this new security, in which White's name was studiously omitted, was lending himself to screen Akers, the usury was a bar to this action, and the nonsuit right.

(57) Preston v. Jackson, 2 Stark. 237. Wyer lent defendant two sums on usurious interest, and took defendant's bonds for the amount;

If a bill or note is given in part upon a legal, and in part upon an illegal consideration, and several bills or notes are afterwards substituted in lieu thereof, the effect of the illegality may be confined to some only of the substituted bills or notes, and the other stand exempt. (58)

As where a bill or note is given as to half for a gaming debt, and as to the residue for money lent, and two bills or notes of equal amount are afterwards substituted for it, if the giver does any thing which may be considered an election to ascribe the gaming debt to the one, he will be liable upon the other. (58)

Promising to pay one whilst both remain unpaid, shall be deemed an election to ascribe the gaming debt to the other. (58)

But it is no objection to a bill or note that it was drawn in order to be discounted, and that the brokerage for getting it discounted was exorbitant, if the broker did not discount

the bonds were afterwards given up, the account settled, and a note given for the usurious interest: Wyer endorsed that note to the plaintiff, and Holroyd J. held, that though a new security for principal and legal interest had been held binding, such a security for the usurious interest was not so, and he would not allow the plaintiff to recover on

the note.

[In an action by an endorsee against Watts, the maker of a note endorsed by Lancaster, the defence set up was usury. Watts had made a note to Lancaster and another person, on which interest at the rate of 12 per cent. was to be paid. He made several payments on this note amounting to more than the interest, and it was then cancelled, and he gave a new note to Lancaster for the balance, on which only lawful interest was paid. After several payments on this note, Watts gave the note declared on, for the balance remaining due to Lancaster. Sewall C. J. giving the opinion of the Court, said, that there was no · pretence that the note in suit included unlawful interest; and the defendant was defaulted. Chadbourn v. Watts, 10 Mass. R. 121.]

(58) Hubner v. Richardson, Michas. 1819. Richardson lost to Brown at gaming £90 and owed him other money; and for upwards of £20 of the gaming debt, and upwards of £70 of the other, gave him a £100 note: he paid part, and then gave Brown two notes for £43 each, one of which was endorsed to plaintiff for a valuable consideration, and he knew nothing of the gaming debt; defendant promised him payment: and in an action on the note, case on question whether the gaming consideration vitiated the note in plaintiff's hands, and after argument, the court held it did not, for it was for defendant to make out that some of the gaming debt made part of the consideration of this note: it might be wholly included in the other note, which did not appear to have been paid, and defendant's promise to pay this, implied an election on his part that it should be so included in the other.

them himself, and the person who did knew nothing of his charge. (59)

The objection of illegality of consideration is in some cases confined to those persons who were parties or privy to such illegality, and those to whom they have passed the bill or note without value; in other cases it is extended even to holders bonâ fide, and for value. (a)

The latter cases are, where the consideration is either (60) wholly or in part (61) signing a bankrupt's certificate, money (62) lost by gaming as aforesaid, or by betting on the sides

(59) See Acland v. Pearce, 2 Campb. 599. Young v. Wright, 1 Campb. 139. Dagnell v. Willey, 11 East. 43.

[(a) The Court in South Carolina, (in 1792,) say that there is no difference between a note void by common law or by statute, for illegality of consideration; and that a bonâ fide endorsee of a note, void at common law for illegality and turpitude in the consideration, could not maintain a suit upon it against the maker. 1 Bay, 249. See also Wiggin v. Bush, ante, p. 354. But the law is well settled that a note given for an illegal consideration, is available in the hands of a bonâ fide holder, unless made void by statute. See Chitty on Bills, 5th ed. p. 105.]

(60) Robinson v. Bland, Burr. 1077. A bill of exchange was partly for money lent at the time and place of play, and partly for money lost at play and on a case reserved the court held that the plaintiff could recover nothing upon the bill, but that he might recover the money lent on a count for money lent.

(61) Vide 5 G. 2. c. 30. § 11. ante, p. 354. note (24).

(62) By 9 Ann. c. 14. § 1. It is enacted that all notes, bills, or other securities 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 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 any person or persons so gaming as aforesaid, or that shall, during such play, so play or bet, shall be utterly void, frustrate, and of none effect, to all intents and purposes whatsoever.

Bowyer v. Bampton, Str. 1155. Several notes given by Bampton to Church for money lent to game with, were endorsed 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 endorsee; and the plaintiff would not be without remedy, for he might sue Church on his endorsement.

[Benson was sued as acceptor of a bill drawn by Duckworth payable