^YAGERS. 421 



for proof that he gave value, yet the presumption does not 

 arise, when the previous holder merely held without con- 

 sideration. "The note was given to secure payment of a 

 Wagering Contract, Avhich even before 8 & 9 Yict. c. 109, 

 the law would not enforce, but it was not illegal, and there 

 is no penalty attached to such a Wager ; it is not in viola- 

 tion of any Statute nor of the common law, but is simply 

 void, so that the consideration was not an illegal con- 

 sideration, but equivalent in law to no consideration at 

 all"{b). 



In accordance with the same principle it was held by Wagering 

 the Exchequer Chamber in the case of Smith v. Liiu/o {c), ^^^^^^^^^^^ 

 that although an unlicensed person who assumes to act as void but not 

 a broker (in London) in the buying of shares in a public illegal. 

 Company, is, by reason of 6 Anne, c. 16, incapacitated 

 from suing for commission, yet he may recover money 

 which by the usage of the share-market he has been obliged 

 to pay to the seller as the price of the shares ; there being 

 nothing to show that the payment was made in pursuance 

 of any illegal Contract, or that it was a necessary part of 

 the duty of a broker, as such, to pay the money. 



A Contract may be illegal without being void. Thus Contracts 

 by 1 & 2 Vict. c. 106, s. 29, it is rendered illegal for any "Jf/^^j^JT" 

 spiritual person holding a benefice to engage in trade, fre'not void, 

 except in certain cases. And by section 31 it is expressly 

 provided that no Contract shall be deemed to be void by 

 reason only of the same having being entered into by a 

 spiritual person trading or dealing ; but that every such 

 Contract may be enforced by or against such spiritual 

 person. The effect of this Statute is to allow a Con- 

 tract, which it pronounces to be illegal, to be enforced, 

 although the party with whom it was made was at the 

 time aware that the other party was a spiritual person 

 holding a benefice. The party offending is liable to the 

 penalty, but at the same time must perform the Con- 

 tract (f/). 



The fact that the Contract was originally void cannot Money paid 

 be set up as a defence to an action for money paid, in ^^ ^^^ ^"^* 

 satisfaction of that Contract, to the defendant for the 



(i) Per Lord Campbell, C. J., K. 80G- C. A. 



Fitch V. Joues, 5 E. & B. 238. And (r) Smith v. Undo, 5 C. B., N. S. 



see Li/)m v. Bell, 10 Ir. R., C. L. 587. 



487 ; Fi/ke, Ex parte. Lister, lit re, {d) Leivis v. Briffht, 24 L. J,, 



L. E,., 8 Ch. D. 754 ; 47 L. J., Bk. Q. B. 191. 

 100 ; 38 L. T., N. S. 923 ; 26 W. 



