of the two Acts. In Fitch v. Jones1 the action was brought. (in the Queen's Bench) by the indorsee of a promissory note, which note had been given in payment of a bet on the amount of the hop duty. As the wager itself was simply void by the Act of 1845, and neither the wager nor the security given upon it were in any way touched by the Act of 1835, it was decided (by Lord Campbell) that the note did not take its inception in illegality within the meaning of the rule; that although the note was given to secure payment of a wagering contract, yet it was not illegal, for there was nothing prohibited about it, but it was simply void: so that the wager itself was not an illegal consideration, but the same as no consideration at all. Now, by the Common-law rule as to negotiable instruments (originating in the Law Merchant), the consideration for a negotiable instrument is presumed unless the contrary is proved: moreover, it matters not whether the consideration was given by the plaintiff himself or by a previous holder. Consequently, in Fitch v. Jones, it was held that the onus probandi was on the defendant, and it was for him to prove that neither the plaintiff nor the previous holder had given consideration for the note; and as the defendant could not prove this, he was held liable; it mattered not that the original consideration was a wager on the amount of the hop duty-that was void merely and not illegal consequently no taint of illegality attached to the subsequent presumed consideration which the defendant could not disprove.

But the effect of the Gaming Act of 1835 may be illustrated from the case of Woolf v. Hamilton. This action was upon a cheque of which the defendant was the drawer, and which had been given by him to the payee in payment of bets lost on horse races. The cheque had been indorsed by the payee to the plaintiff for value, and the plaintiff knew 1 [1855], 5 E. & B. 245. 1 2 L. R. [1898], 2 Q. B. 338, and C. A.

for what consideration the cheque had been given when it was so indorsed to him. It was held by Darling, J., that under the Gaming Act 18351 the cheque must be deemed to have been given for an illegal consideration, and therefore the action was not maintainable. And this decision was upheld unanimously by the Court of Appeal. It mattered not that the plaintiff (to whom the cheque was indorsed) had given good consideration for the cheque : it was not as if the cheque had been originally given for nothing at all (as, e. g., for a merely void wager): it was sufficient defence that the cheque had been originally given in payment of a bet on a "game" or "pastime" (viz., horse-racing), and that the plaintiff knew this at the time when he accepted the cheque.

For the purposes of the Act of 1835 it makes little difference whether the betting or gaming itself happens to constitute a police offence, and whether even the game itself is illegal to play at.2

As to what constitutes a gaming or wagering contract under the Act of 1845, the two essential characteristics are that (1) each party has the chance of either gaining from or losing to the other money or something of a money value upon the issue of an event which is uncertain to both at the time of the contract, and (2) that the only real inducement on both sides to enter into the agreement is the creation of an entirely new chance of gain or loss.3

And again (2)." the essence of gaming and wagering is that one party is to win and the other to lose upon a future event which at the time of the contract is of an uncertain nature—that is to say, if an event turns out one way A will lose, but if it turns out the other way he will win. +

1

5 & 6 Will. IV, c. 41.

24

4

66 Faro,' 66 " "Hazard," Basset," Passage," and "Roulet" are prohibited by Acts of Geo. II: these Acts prohibit the games and penalise the players.

8 Carlill v. Carbolic Smoke Ball Co. [1893], 1 Q. B., C. A. 256.

Per Cotton, L.J., in Thacker v. Hardy [1878], 4 Q. B. D. 685, also per Channell, J., in Richards v. Starck, L. R. [1911], 1 K. B. 296.

The question as to what actually constitutes a gaming or wagering contract under the Acts of 1835 and 1845 presents little difficulty. Most of the cases under the Acts of 1835 and 1845 are concerned with collateral contracts indirectly connected with an original gaming or wagering transaction.

The general rule is that if a transaction is actually prohibited, a collateral contract made in furtherance of it is itself void, even if the collateral contract is under seal, and so requires no consideration at all, e. g., a contract (under seal) to sell land in order that it might be resold by lottery;1 and the same principle applies if the main agreement is merely stigmatised as illegal by statute and directed to be regarded as such, as in the case of Woolf v. Hamilton, but if the main contract is merely void (as under the Act of 1845), a collateral contract made in furtherance thereof may be perfectly valid. And sometimes even a contract may be valid, though made in connection with an "illegal" contract within the meaning of the Act of 1835. In the case of Bubb v. Yelvertons the action was brought against the representative of the Marquis of Hastings (deceased) on a bond for £10,000: the Marquis, having incurred heavy losses in horse racing, and being threatened with expulsion from the Jockey Club and with being posted as a defaulter at Tattersall's, gave a bond for £10,000 in consideration of these threats not being carried out. It was held that the bond was perfectly good and could be proved against the deceased's estate, because it was not a promise to pay racing debts, but a promise to pay in consideration of the forbearance to post him as a defaulter: it was held that this forbearance was good consideration quite ulterior to and independent of any racing debts, and that the object of the bond was not to pay racing debts, but to avoid the 1 Fisher v. Bridges [1854], 3 E. & B. 642. 2 Q. B., C. A. 338.

2

3 [1870], 19 Wm. Rob. 739.

consequences of not having paid them. It does not seem to have occurred to the Court to consider whether the threats themselves had any justification in law, made as they were with a view to extorting money which was not due at the time when they were made. In the case of ex parte Pyke, it was held that money advanced to a betting agent to pay lost bets could be recovered, and proof of the promissory notes was ordered to be admitted as against the debtor's trustee in bankruptcy: for it was held that the notes were not a security for money "knowingly lent or advanced for gaming or betting" within the meaning of the Gaming Act of 1835, as that Act only applied to loans to make bets, and not to loans for the purpose of paying lost debts.

2

In Read v. Anderson, it was held by the Court of Appeal (affirming the decision of the Queen's Bench Division) that the employment of an agent to make a bet in his own name on behalf of his principal, may imply an authority to pay the bet if lost, and on the making of the bet that authority may become irrevocable: in this case the employer was compelled to repay his agent money expended by him in discharging his employer's bets, even though the agent's authority to do so was revoked; for if the agent had not paid he would have been posted as a defaulter.

3

In Seymour v. Bridge, the defendant was held liable to indemnify his agent (the plaintiff) against loss in paying for shares which were void by Leeman's Act; for although the shares themselves were void, yet the Stock Exchange usage to recognise these faulty documents was known to both parties, and the agent would have incurred expulsion had he not paid for them; in this case the decision in Read v. Anderson was strictly followed.

1 [1878], 8 Ch. D. 756.

2 [1884], 13 Q. B. D., C. A. 776.

8 [1885], 14 Q. B. D. 460.

In the case of Bridger v. Savage, it was held that a betting agent, who was promised a commission of 5 per cent. of the winnings, was liable to pay the balance due to his principal, after deducting losses and the 5 per cent. commission in other words, the contract between principal and agent was valid, even though the employment consisted of making void contracts.

In the case of Cohen v. Kittle, the failure of a betting agent to win money, by neglecting to make the bets which he had agreed to make, was held not actionable for an agent is only liable for negligence when his principal has suffered real loss or actual damage, and not merely a possible loss; and in this case the loss was somewhat hypothetical, as the Act of 1845 makes all betting and wagering debts void.

In consequence of some of these recent decisions, especially Read v. Anderson, the Gaming Act of 1892 was passed to alter the law in one respect. This Act3 enacts as follows:Any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by 8 & 9 Vict., c. 109, or to pay any sum of money by way of commission, fee, reward, or otherwise in respect of any such contract, or of any services in relation thereto, or in connection therewith, shall be null and void, and no action shall be brought or maintained to recover any such sum of money."

This section has the effect of reversing the law as laid down in some of the previous decisions. The latter part of the above section, viz., that which makes void the promise to pay any sum of money by way of commission, fee, or reward in respect of any such contract, etc.—has a partial effect on the decision in Bridger v. Savage: the betting agent is still bound to account for money received on behalf of his principal; but the principal is no longer bound to pay the promised commission or reward.

1 [1885], 15 Q. B. D., C. A., 363. 2 [1889], 22 Q. B. D., 680.

3 55 Vict., c. 9.