CHAP. XXXIII. Statute of The Statutes of Limitations will, in the case of a mortgage of a reversionary interest, begin to run only from the time when the interest falls into possession so as to preclude the borrower from seeking to set aside the mortgage (x). CHAPTER XXXIV. OF MORTGAGES WHICH ARE VOID ON GROUNDS OF PUBLIC POLICY. i.-Securities for Debts incurred in Gaming and Wagering.-By 9 Anne, c. 14. the stat. 9 Anne, c. 14, s. 1, notes, bills, bonds, judgments, mortgages or other securities or conveyances for or in consideration of money lost or lent at play are made utterly void, and all mortgages and incumbrances or conveyances of lands made upon that consideration are made to enure to the use of the person next in remainder or succession, as if the mortgagor were then dead (a); and payments made on such securities could not be supported, and might have been recovered back in equity as incidental to the delivery up of such securities (b); and the forfeiture of such securities under the first section of the statute of Anne was held not to be a penalty of such a nature as to protect a party from discovering the consideration for the security on which the action at law was brought (c). It was formerly considered that there was a distinction under this statute between money lent and money lost at play, and that, in the former case, the security was avoided, but the contract for payment was good; but it was subsequently decided that where the game was illegal, the contract for payment of money lent or lost at play was void, as well as the security, by the statute of Anne (d). By 5 & 6 Will. IV. c. 41, so much of the above Acts as 5 & 6 Will. declares "notes, bills, or mortgages" to be void is repealed, and (a) See Smith v. Bond, 11 M. & W. 558. (b) Fonb. Eq., Vol. 1, Ch. 4, s. 6; and Rawden v. Shadwell, Amb. 269; Smith v. Bond, sup.; and sect. 2 of the statute of Anne. (c) Sloman v. Kelly, 4 Y. & C. C. C. 169; and 3 Y. & C. C. C. 673. (d) M'Kinell v. Robinson, 3 M. & W. 434. And see Young v. Moore, 2 Wils. K. B. 67; Applegarth v. Colley, 10 M. & W. 723, 732; Thorpe v. Coleman, 1 C. B. 990. IV. c. 41. CHAP. XXXIV. the said Acts are made to operate as if they had enacted that every such "note, bill, or mortgage" should be deemed to have been made, drawn, accepted, given, or executed for an illegal consideration. The Act also repeals that part of the statute of Anne relative to incumbrances on land enuring to the benefit of the remainderman, &c., and enacts that the money paid by the drawer, &c. upon such "bill, note, or mortgage" to the indorsee, holder, or assignee thereof, shall be taken as paid to the use of the party to whom the security was originally given, and be recoverable from him by action at law (e). 8 & 9 Vict. c. 109. This Act was passed for the relief of purchasers of such securities for valuable consideration without notice. But even under the old law the Court would not set aside a judgment founded on a warrant of attorney, given to secure a gaming debt, as against a purchaser, if the debtor had represented before the purchase that the debt was a valid one (ƒ). It may be remarked that 5 & 6 Will. IV. c. 41 only alters the operation of the prior Act as to bills, notes, or mortgages. It has been decided that, as to judgments, the prior Act only avoids voluntary judgments given by the loser at play, either to the winner or to someone for his benefit, as a security for money lost, and do not avoid a judgment obtained adversely by an innocent party, or, as it seems, by the winner himself; but the defendant should set up the illegality of the security as an answer to the action (g). Money lent to pay a gambling debt is not within the stat. 5 & 6 Will. IV. c. 41 (h). The stat. 8 & 9 Vict. c. 109, s. 18 (which repeals so much of the statute of Anne as was not repealed and re-enacted with alteration by the stat. 5 & 6 Will. IV. c. 41), enacts as follows: "All contracts or agreements, whether by parol or writing, by way of gaming or wagering, shall be null and void; and no suit shall be brought or maintained at law or in equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or deposited in the hands of any person to abide the event on which any wager shall have been made; provided always, that this enactment shall not be deemed to apply to any subscrip (e) See Gilpin v. Clutterbuck, 13 L. T. 71, 139, 159, Q. B. (f) Davison v. Franklin, 1 B. & Ad. 142. (g) Lane v. Chapman, 11 A. & E. 966; Chapman v. Lane, 11 A. & E. 980. (h) Aleinbrook v. Hall, 2 Wils. K. B. 309; Barjeau v. Walmsley, 2 Stra. 1248; Exp. Pyke, 8 Ch. D. 754, C. A. tion or contribution, or agreement to subscribe or contribute, for or towards any plate, prize, or sum of money, to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise." The Act also (sect. 17) makes a party who wins money, &c. by way of fraud practised in gaming or wagering, punishable as obtaining money under false pretences. It is enacted by the Gaming Act, 1892 (i), that CHAP. XXXIV. 55 & 56 Vict. c. 9. contracts void Any promise, express or implied, to pay any person any sum Promises to of money paid by him under or in respect of any contract or agree- repay sums ment rendered null and void by the Act of 8 & 9 Vict. c. 109, or to paid under pay any sum of money by way of commission, fee, reward, or by 8 & 9 Vict. otherwise in respect of any such contract, or of any services in c. 109, to be relation thereto or in connection therewith, shall be null and void, null and void. and no action shall be brought or maintained to recover any such sum of money." this Act. The Act has been applied so as to refuse any remedy to an Effect of agent who had paid money on express instructions from his principal, though it was not stated in the affidavits that the agent had any knowledge that the money was paid in respect of debts (). The Act has been held not to be retrospective (). The result seems to be as follows: That any gaming or wagering contract, agreement, or promise is now clearly void, and cannot be enforced : That the securities given for money won by any gaming or wagering, or for repayment of moneys paid by another person on behalf of and at the request of a loser (or at least, bills, notes, and mortgages given as such securities), though now no longer totally void, can be enforced by a transferee for valuable consideration without notice, and by no other person (m): That if voluntary judgments and securities other than "bills, notes, and mortgages" be untouched by the statute of Will. IV. yet it would seem that the statute of Victoria would be a bar to their being enforced independently of the ordinary doctrines of law and equity; and in such case a purchaser for valuable consideration, holding such judgment or security, would seem not to be protected: 44. (i) 55 & 56 Vict. c. 9. (k) Tatam v. Reeve, (1893) 1 Q. B. (1) Knight v. Lee, (1893) 1 Q. B. 41. (m) See the preamble of the Act of Will. IV., which seems to warrant this assertion, and also to bring other CHAP. XXXIV. Deposit with stakeholder. Deposit of securities as cover for dealings in stocks and shares. That judgments recovered adversely against the loser remain as before the late Acts: That gaming securities may be set aside and ordered to be delivered up (n): That at common law money paid by the loser to the winner can only be recovered back while the contract is executory (0) : That probably the Court still could, on setting aside gaming securities, decree money paid on them to be repaid (p). The ground, however, on which Rawden v. Shadwell (q) was decided, viz., that the security was totally void by the statute, is now gone; and it must be observed that, in that case, only part of the money secured had been paid: That money paid to the transferee of gaming securities, or, at least, of a bill, note, or mortgage, for valuable consideration without notice, is recoverable from the party to whom the security was originally given, as money paid for his use (r). The distinction between these cases and those in which the transaction is illegal and subject to penalties is obvious (s). But it would seem that money deposited with a stakeholder cannot now, on the ground of playing for ready money, be recovered by the winner (); though it seems that any one of the depositors who has repudiated the wager before the time fixed for its determination, or even before the money is paid over, may recover back the sum deposited by him from the stakeholder, as fully as he could before the Act (u). Where an action was brought to recover back securities deposited as cover for differences which might arise on dealings in stocks and shares which were found by the jury to have been gambling transactions, it was held that sect. 18 of the stat. 8 & 9 Vict. c. 109 did not apply to such a deposit so as to prevent the depositor from maintaining his action, and that he was entitled to delivery up of the securities. The case was treated by Lord Esher, M. R., and Sir A. L. Smith, L. J., as one 614; Rosewarne v. Billing, 15 C. B. (s) Fisher v. Bridges, 3 E. & B. 642. (u) Varney v. Hickman, 5 C. B. 271; 17 L. J. C. P. 102. And see Hastelow v. Jackson, 8 B. & Cr. 225; Hodson v. Terrill, 1 Cr. & M. 797; Gatty v. Field, 9 Q. B. 431. |