406 



WAGERS. 



Effect of 

 wagers being 

 void on note 

 given in pay- 

 ment. 



The onus of proving the consideration to be a good one 

 does not lie with the subsequent holder of a promissory 

 note given in payment of money lost on a vrager, such 

 wager not being within the statutes to which the 5 & 6 

 Will. 4, c. 41, is applicable, and being therefore simply 

 void within 8 & 9 Vict. c. 109, s. 18. Thus in a case (ff) 

 in which a promissory note was given in payment of a bet 

 (upon the amount of hop duty payable in 1854, which was 

 not therefore within 5 & 6 Will. 4, c. 41 (h)), and an 

 action was brought upon it, it was held that it lay upon 

 the defendant to prove the absence of consideration for it ; 

 for, though proof that a negotiable instrument was affected 

 with fraud or illegality in the hands of a previous holder 

 raises a presumption that he would indorse it away to an 

 agent without value, and consequently calls on the plaintiff 

 for proof that he gave value, yet the presumption does 

 not arise, when the previous holder merely held without 

 consideration. "The note was given to secure payment 

 of a wagering contract, which even before 8 & 9 Vict. 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 considera- 

 tion, but equivalent in law to no consideration at aU " («). 



So where an action was brought to recover the amount 

 due on two promissory notes given by the defendant to 

 one B. in respect of certain gambling transactions on the 

 stock exchange, and indorsed over by B. to the plaintiff 

 for valuable consideration ; it was held that the plaintiff's 

 right to recover was not affected by the fact that he had 

 notice of the notes having been given by the defendant 

 in respect of such transactions, the consideration for the 

 notes not being illegal, but falling within the category of 

 void contracts under the 8 & 9 Vict. c. 109 (A-). 



In an action brought by the holder for value of a cheque 

 with notice that it was drawn for the purpose of paying 

 certain betting losses to the person in whose favour it was 

 drawn, the defendant was given unconditional leave to 



iff) Fitch V. Jones, 5 E. & B. 238 ; 

 24 L. J., Q. B. 293. 



(A) As to the scope of this Statute, 

 see post, Chap. IV., and see also the 

 Statute, Appendix. 



(jj Per Lord Camphell, C.J., 

 Mich V. Jones, 5 E. & B. 238. And 



see Zt/iin v. ScU, 10 Ir. E., C. L. 

 487 ; -P(/fe, Jlx parte, Lister, In re, 

 8 Ch. D. 764; 47 L. J., Bk. 100; 

 38 L. T., N. S. 923; 26 W. E. 806 

 — C. A. 



(k) LUUy V. Mankin, 56 L. J., 

 Q. B. 248 ; 55 L. T., N. S. 814. 



