GAMING. 44)5 



"between the original parties, and also as against all persons 

 who have taken them with notice of the illegality, or after 

 they have become overdue, or without giving value for 

 them ; but good in the hands of every person who has 

 given value, and taken the instrument bona fide, and before 

 it was due (a). 



Accordingly where a bond was assigned for a valuable 

 eonsideration without notice of objection to its validity, 

 the obligor having applied to the assignee for a further 

 advance, and offering to give a mortgage for the whole, but 

 stating no objection to the validity of the bond, was not 

 allowed afterwards to endeavour to avoid the bond by 

 evidence that it was given to secure money lost by a bet on 

 a horse race ; for the Court will not allow a person to set 

 up an objection to the validity of his own obligation upon 

 grounds which he suppressed at the time, but against which, 

 if divulged, the obligee could have protected himself (5). 

 It appears, therefore, that bonds are within the equity of 

 5 & 6 Will. 4, c. 41, which makes securities valid in the 

 hands of bona fide holders without notice that the considera- 

 tion was a gaming debt (c). 



The effect of the Act, therefore, seems to be, that where General effect 

 a sum of money was won as a stake in a lawful game, or w^'^/ . 

 under other circumstances therein mentioned, and a pro- 

 missory note, bill of exchange, or mortgage is given in 

 payment, or as a security, not only is the instrument void 

 as between the parties themselves, but the circumstance of 

 its having so been given avoids the contract on which it is 

 founded. In such case, therefore, the winner not only 

 loses the benefit of his security in writing, but is deprived 

 of his claim to the consideration upon which it was given. 



The Court of Exchequer, however, appear to have gone 

 farther in their construction of the statute ; for Mr. Baron 

 Rolfe, in delivering the judgment of the Court in Apple- 

 garth V. Colleij [d), and speaking of 5 & 6 Will. 4, c. 41, 

 says, " That Act, while it repeals so much of the statute of 

 Anne as makes the securities void, expressly enacts that 

 they shall be deemed to have been given on an illegal con- 

 sideration, and it is impossible to impute to the Legislature 

 an intention so absurd as that the consideration should be 



(a) Smith, Coutr. 186; Fadenilke Giff. 194. See also ante, p. 402, 5"t« 



V. Holroyd, before Chief Justice t. Fox, 4 H. & N. 359. 



Wilde, Common Pleas Sittings, Not. (c) See post, p. 447. 



30 1846. (il) Applegarth t. Colley, 10 M. k 



\b) Hawlcer v. HaUiwell, 3 Sm. & W. 732. 



