of trover or detinue; but Rigby, L. J., regarded it rather as one of CHAP. XXXIV. a claim to redeem, and said that the transactions having been held to be gaming transactions there was nothing due upon the security, and accordingly that the mortgagee must deliver up the securities, or, if they could not be given up, he must pay their value (x). It seems that the effect of the proviso at the end of sect. 18 of Subscriptions to prizes. the stat. of Victoria is to render valid, or rather to save out of the operation of the former part of the clause, any subscription or contribution to abide the event of a lawful game, though the subscribers themselves are the parties engaged in the game, and that the winner may recover the money so subscribed or agreed to be subscribed (y); and thus, where a foot race or horse race takes place between two or more parties, each of whom deposits a sum with a stakeholder, such deposit may be recovered by the winner; and yet, by a strange anomaly, the security given for such money may be illegal, and money paid on such security may, perhaps, be recovered back under the statutes of Anne and Will. IV. (y). In Applegarth v. Colley (z), before the statute of Victoria, a Horse racing. horse race for money, raised by the parties themselves, was said to be within the statute of Anne; but it was said that, since the repeal of 13 Geo. II. c. 19, by 3 & 4 Vict. c. 5, there was nothing to prevent a race for a sum of money given by a stranger by way of prize. Horse racing was, by 13 Geo. II. c. 19, declared to be illegal, unless the stake was 507. at least, or the race was held in certain places named in the Act. But wagers even on such legal races were illegal, at least if exceeding 107. (a), and, it seems, are void in all cases, since 8 & 9 Vict. c. 109, s. 18. Where judgment has been obtained in an action on the contract, in which the illegality within the above statutes was not set up, it cannot be impeached (b). By 18 Geo. II. c. 34, courts of equity were empowered to make a decree in suits to enforce payment under transactions contrary to 9 Anne, c. 14, and in several cases have accordingly given relief by ordering the delivery up of securities (c). (x) Strachan v. Universal Stock Exchange, (1895) 2 Q. B. 329, C. A. (y) Batty v. Marriott, 5 C. B. 818; 17 L. J. C. P. 215. (2) 10 M. & W. 723. (a) Goodburn v. Marley, 2 Stra. 1159; Shillito v. Theed, 7 Bing. 405; Pugh (b) Lane v. Chapman, 11 A. & E. (c) Newman v. Franco, 2 Anst. 519; CHAP. XXXIV. transactions. 9 Anne, c. 14, enacted (d) that persons liable to be sued for money or valuables under the statute should be compelled to give discovery (e). The repeal by 8 & 9 Vict. c. 109 of the Act of Anne, and of that part of the Act of Geo. II. which relates to it, appears to leave the matter subject to the general rules of courts of equity, concerning answers which would expose a defendant to criminal prosecution. If a loan be placed by the lender in the hands of the borrower as the lawful owner of it to dispose of as he pleases, a security for its repayment will be good, although the lender may have expected to be paid out of it the amount of bets won by him from the borrower; but if it were lent under an agreement that the bets should be paid out of it, the security will be bad as a colourable evasion of 9 Anne, c. 14, and 5 & 6 Will. IV. c. 41 (ƒ). A bond to secure moneys agreed to be paid to avoid being posted as a defaulter for non-payment of racing debts, is good (g). Stock-jobbing The enactments in restraint of stock-jobbing have been abrogated (h), and, accordingly, securities given for moneys payable in respect of such transactions are no longer impeachable on the ground of illegality of the consideration, unless such transactions are in fact gambling transactions (i). Considera tion of future ii.-Immoral Securities.-Securities given for an immoral cohabitation. consideration are void; as where a mortgage or annuity is given to a woman in consideration of future illicit intercourse with the grantor (); in a case of this kind the Court ordered the bond to be delivered up, and set aside a judgment and other proceedings upon it (7). Considera tion of past cohabitation. A distinction, however, is made where the security is given as premium pudicitiæ in consideration of a cohabitation which has determined, which has been said to be a "lawful and conscien (i) Supra. (k) Robinson v. Cox, 9 Mod. 263; Walker v. Perkins, 1 W. Bl. 517; Gray v. Mathias, 5 Ves. 286; Friend v. Harrison, 2 C. & P. 584; Rex v. Northwingfield, 1 B. & Ad. 912; Batty v. Chester, 5 Beav. 103; Smythe v. Griffin, 13 Sim. 245; Evans v. Carrington, 30 L. J. Ch. 370; Bullmore v. Willyams, 32 Beav. 574. (1) James v. Hoskins, 1 Tidd. Pr. 593. tious consideration (m), on the ground that such a course enables the woman to lead a course of life more conducive to her own happiness and to public morality. CHAP. XXXIV. It is now settled, after some difference of opinion (n), that the Consideration of past Court will not relieve against a security given in consideration cohabitation. of past cohabitation, even though the defendant is proved to be a common prostitute (0). with married man. If, however, the consideration be a past cohabitation with a Cohabitation married man, equity will not assist the woman to enforce the security, if she knew that the defendant was a married man (p); but if there are children, the Court will regard their interests (7); and in such a case the Court will enforce a security for payment of money as a provision for the woman and her children. It must be borne in mind that the consideration of past Security must be by deed. cohabitation, though meritorious, is not valuable (), and accordingly will not support a security for payment of money unless the instrument creating the security is under seal and executed (s); for in matters executory, even on the consideration of premium pudicitiæ, the Court will not compel the party or his executors to fulfil an agreement to provide for a forsaken mistress. of cohabita tion. Where a security is given by a man to his mistress in consi- Continuance deration of past cohabitation, the continuance of the cohabitation is not of itself sufficient to raise the presumption that the security is given in consideration of a continuance of the connection (t). No turpis contractus shall be presumed unless proved (u). creating secu If the instrument creating a security given in consideration Loss of deed of past cohabitation is lost or destroyed, it would seem that the rity. grantee may have her remedy in equity notwithstanding (x); but "these matters are discretionary" (y), and there are some old cases to the contrary (z). (m) Turner v. Vaughan, 2 Wils. K. B. 339. (n) Whaley v. Norton, 1 Vern. 484. (r) Beaumont v. Reeve, 10 Jur. 284, Q. B.; Binnington v. Wallis, 4 B. & Ald. 650. Gibson v. Dickie, 3 M. & S. 463, is not law. (s) Matthews v. L, 1 Madd. 558; Whaley v. Norton, 1 Vern. 483. VOL. I.-R. (t) Re Vallance, Vallance v. Blagden, 26 Ch. D. 353. (u) Lightbone v. Weedesh, 1 Eq. Ca. Ab. 24, pl. 7; 93, pl. 5. (x) Underwood v. Staney, 1 Ch. Ca. 78; Lightbone v. Weedesh, sup. (y) 1 Eq. Ca. Ab. 62, pl. 4. (z) Miller v. Reames, 1 Roll. Abr. 375, Chancery (Q), pl. 1; Vincent v. Beverlye, Noy, 82. See Toulmin v. Price, 5 Ves. 235. SS CHAP. XXXIV. Marriage brocage. Securities for obtaining sale Compounding felony. iii.-Other Invalid Securities.-Securities given as a reward for procurement of marriage (commonly called marriage brocage) with a particular person are also void as contrary to that freedom of choice in marriage which is encouraged by public policy. Such securities may be ordered to be delivered up, and sums already paid under them to be returned (a). Upon the same principle of public policy, securities given for obtaining or for procuring the sale of a public office of trust are void, whether the office be or be not one the sale of which is forbidden by statute (b). Where the security is the result of an illegal agreement to compound a felony it will be void (c); but a security given for a debt actually owing will not be avoided merely because it appears that the creditor was thereby induced to abstain from prosecution (d). A deposit by a married woman of securities held to her separate use to cover a loss occasioned to the plaintiff by the felony of her husband, upon condition of the charge being withdrawn, is illegal (e). (a) Drury v. Hooke, 1 Vern. 411; Stribblehill v. Brett, 2 Vern. 445; Smith v. Bruning, 2 Vern. 392. See Smith v. Aykwell, 3 Atk. 566; and Shirley v. Martin, 3 P. Wms. 74, n., per Lord Hardwicke; Cole v. Gibson, 1 Ves. Sen. 506; Hall v. Potter, 3 P. Wms. 392, n. (b) Law v. Law, 3 P. Wms. 391; Stackpole v. Earle, 2 Wils. K. B. 133. (e) Ward v. Lloyd, 6 M. & Gr. 785. (d) Flower v. Sadler, 10 Q. B. D. 572, C. A. See Williams v. Bayley, L. R. 1 H. L. 200; Seear v. Cohen, 45 L. T. 589, Q. B. (e) Whitmore v. Farley, W. N (1881) 8. Part V. OF THE ESTATE, RIGHTS, LIABILITIES, AND REMEDIES OF CHAPTER XXXV. OF THE NATURE AND INCIDENTS OF AN EQUITY OF REDEMPTION. had at common law no i.-Equity of Redemption is an Estate.-It has been already Mortgagor shown that, by the common law, the legal ownership of the land, on the execution of the deed of mortgage, is transferred estate, but only a right to the mortgagee, subject to be divested on performance of the of re-entry. condition, and that a mere right of re-entry on performance of the condition remains in the mortgagor, of which, being neither alienable nor devisable prior to the modern statutes (a), advantage might be taken only by him or his heirs. In an early case (b), these doctrines were applied in equity Application to the right to redeem after condition broken; and it was there trine in held that an equity of redemption was a mere right, and was equity. not an estate of inheritance capable of being entailed under the statute De Donis (c). redemption estate in the mortgagors. In the leading case of Casborne v. Scarfe (d), however, Lord Equity of Hardwicke, C., stated the settled rule of equity to be that an held to be an equity of redemption is to be deemed an estate in the land, for that it may be devised, granted, or entailed with remainders, and such entail and remainders might be barred by fine or recovery, and therefore cannot be considered as a mere right only, but such an estate whereof there may be a seisin. The person, therefore, entitled to the equity of redemption is considered as owner of the land. It is now an established doctrine of equity that the mort (a) See 1 Vict. c. 26, s. 3, and 8 & 9 Vict. c. 106, s. 6, by which rights of entry are made devisable and alienable by deed. (b) Roscarrick v. Barton, 1 Ch. Ca. 217. (c) 13 Edw. I. c. 1. (d) 1 Atk. 602. |