Illegal consideration. Wagers. It must be borne in mind that if a contract be made on several considerations, one of which is illegal either at common or statute law, the whole contract is void. Where, however, the consideration is not tainted by illegality and some of the promises only are illegal, and those are separable from the rest, the legal promises may be enforced, as illegality "does not communicate itself to, or taint the others, except when, owing to some peculiarity in the contract, its parts are inseparable" (1). Illegality is created by statute either by express prohibition or by penalty. As examples of statutes which render contracts void when contravening their provisions, may be mentioned those of 5 & 6 Edw. 6, c. 16, ss. 2, 3, 4, and 49 Geo. 3, c. 126, s. 4, against the sale of certain offices (2). The statutes of 31 Eliz. c. 6, and 12 Anne, stat. 2, c. 12, against simony (3), a mortgage of pew-rents (4). Another class of contracts prohibited by statute, which require a somewhat more detailed examination, consists of wagering Contracts. WAGERS. At common law wagers, unless they were of a mischievous or immoral tendency or contrary to the policy of the law, were not void. The judges, however, treated them somewhat contemptuously as being too frivolous and beneath the dignity of judicial attention, and they accordingly were in the habit of postponing their consideration unless they had nothing better to do. Certain wagers, however, were regarded as illegal at common law, e.g. wagers on the sex of a third party, and as to whether a man charged with forgery would be convicted or acquitted (5). The statute passed in the reign of William IV. (6) enacts that securities for money won at gaming or betting or for money lent or advanced for gaming or betting are to be treated as given for an illegal consideration; but it has been decided that Wagers this statute does not apply to a case where money was lent to enable the borrower to pay a bet already lost. Jessel, M.R., in delivering judgment, said: "If a number of men are round a gaming table, and one of them asks another to lend him money to game with, and he lends the money, that is money 'lent for gaming' within the meaning of the Act. And so also, if money is lent to a man to enable him to make a bet, that is money lent for betting.' The object of the Act was to prevent gaming or betting from taking place, to deter people from committing the illegal act. But in the present case the mischief had been completed, the illegal act had been carried out, before the money was lent" (1). c. 109. A statute passed in the year 1845 (to amend the law concern- 8 & 9 Vict. ing games and wagers) enacts "that all contracts or agreements whether by parol or in writing, by way of gaming or wagering, shall be null or void; and that no suit shall be brought or maintained in any Court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been 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 subscription or contribution, or agreement to subscribe or contribute, for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise" (2). Either party may repudiate the wager and countermand the stakeholder's authority either before or after the event on which the wager was made has come off and recover his deposit. The well-known case of Hampden v. Walsh (3) is a leading authority on this subject. In that case the plaintiff had issued a challenge to deposit £50 to £500 "on reciprocal terms," and defies all the philosophers, divines, and scientific professors in the United Kingdom to prove the rotundity and revolution of the world, from Scripture, from reason, or from fact, and he professed his willingness to acknowledge that he had forfeited his deposit if his opponent could exhibit to the satisfaction of any intelligent referee a convex railway, canal or lake. The challenge was accepted by a Mr. Wallace, and £500 was deposited by both parties with Mr. Walsh who ultimately decided in Mr. Wallace's favour. The plaintiff objected to the decision, and before the (1) Per Jessel, M.R., in Ex parte Pyke. In re Lister, 8 Ch. D. 75ł. (2) 8 & 9 Vict. c. 109. 404 CONTRACTS. [BOOK III. Wagers. money was paid over to Mr. Wallace, demanded back the £500 he had deposited. Mr. Walsh paid both sums of £500 to Mr. Wallace, and the plaintiff then brought an action for the return of his deposit, and it was decided that he was entitled to recover. "As the law now stands," said Chief Justice Cockburn, "since the passing of 8 & 9 Vict. c. 109, there is no longer, as regards actions, any distinction between one class of wagers and another, all wagers being made null and void at law by that statute." "But though," continued the Chief Justice," where a wager was illegal no action could be brought either against the loser or stakeholder by the winner, a party who had deposited his money with the stakeholder was not in the same predicament. If, indeed, the event on which the wager depended had come off, and the money had been paid over, the authority to pay it not having been revoked, the depositor could no longer claim to have it back. If, however, before the money was paid over the party depositing repudiated the wager, and demanded his money back, he was entitled to recover, to have it restored, even when notice was given after the event came off.” "The agreement made in the present case has all the essential characteristics of a wager. Each party stakes his money on an event to be ascertained, and he in whose favour the event turns out is to take the whole. The object of the plaintiff in offering the challenge he gave was not to ascertain a scientific fact, but to establish his own view in a marked and triumphant manner, to use a common phrase, his object was to back his own opinion. No part of the money staked was to go to the party by whom the experiment was to be made " (1). In a very recent case the plaintiff employed the defendant for a commission to make bets for him on horses. The defendant accordingly made such bets, and he received the winnings from the persons with whom he had so betted. The plaintiff brought an action for the amount so received, and the Court of Appeal decided that 8 & 9 Vict. c. 109, s. 18, which makes null and void all contracts by way of wagering, did not apply to the contract between the parties and defendant, and that, therefore, the plaintiff was entitled to recover (2). In another case (3) the plaintiff had employed the defendant to bet on commission, and the defendant having failed to make certain bets pursuant to the plaintiff's instructions, the plaintiff (') Per Cockburn, C.J., in Hampden v. Walsh, 1 Q. B. D. 189. (2) Bridger v. Savage, 15 Q. B. D. (C.A.) 363. (3) Cohen v. Kittell, 22 Q. B. D. 680. sued him for breach of contract as his agent, claiming as Wagers. damages the excess of gains over losses which should have been received by the defendant, had the bets in question been made, after deducting the amount of his commission. The Court decided that, as by the statute 8 & 9 Vict. c. 109, the bets would not have been recoverable at law, the plaintiff could not maintain the action. It is to be observed that the original contract of betting is not an illegal one, but only one which is void. If the person who has betted pays his bet, he does nothing wrong; he only waives a benefit which the statute has given to him, and confers a good title to the money on the person to whom he pays it. Therefore when the bet is paid the transaction is completed, and when it is paid to an agent it cannot be contended that it is not a good payment for his principal (1). In connection with the subject of illegality as vitiating a Fraud. contract, the effect of fraud upon contracts must be noticed and distinguished. A contract obtained by fraud is good if the party upon whom the fraud is practised thinks fit to ratify it. The contract in fact, as Lord Campbell said, is not void, but only voidable at the election (2) of the party defrauded. The party defrauded has an option to disaffirm the contract, but until he disaffirms it it remains good. (1) Per Bowen, L.J., in Bridger v. Savage, 15 Q. B. D. (C.A.) 363; and see Diggle v. Higgs, 2 Ex. D. 422; Read v. Anderson, 10 Q. B. D. 100; 13 Q. B. D. 779; and cases collected in Stutfield on the Law of Betting, 2nd ed. p. 28, et seq., where the cases (2) The Deposit and General Life ( 406 ) Division of bailments. CHAPTER V. BAILMENTS. A bailment is a delivery of a thing in trust for some special purpose; the person who delivers it being called the bailor, and the person to whom it is delivered, the bailee. Bailments were divided by Lord Holt, in Coggs v. Bernard (1), which has been characterized by a high authority as one of the most celebrated cases ever decided in Westminster Hall, into— (1) Depositum, or a "naked" bailment of goods, without reward, to be kept for the use of the bailor. (2) Commodatum. Where goods or chattels that are useful, are lent to the bailee gratis, to be used by him. (3) Locatio rei. Where goods are lent to the bailee, to be used by him for hire. (4) Vadium. Pawn. (5) Locatio operis faciendi. Where goods are delivered to he carried, or something is to be done about them for a reward to be paid to the bailee. (6) Mandatum. A delivery of goods to somebody, who is to carry them, or do something about them gratis. With regard to these different classes of bailments it will be sufficient to observe (1) The bailee in the case of a deposit has no right to use the thing entrusted to him, and he is liable if he is guilty of gross negligence, but not for any ordinary negligence. Thus, in a case where a customer deposited his strong box containing securities with his bankers (who received nothing for their services), he himself retaining the key, and certain debentures were abstracted by the cashier, it was held by the Privy Council that as there was no proof of gross negligence the bank was not liable (2). (') Raym. 3, 240; Smith's Leading Cases, vol. i. See also Chitty on Contracts, 12th ed. p. 512, where a different classification of Bailments by Sir William Jones is given, but it is submitted in the last edition of Smith 8 Leading Cases, 9th ed. vol. i. p. 226, that Lord Holt's classification is the correct one. See, as to bailee being estopped from denying the bailor's title, Rogers & Co. v. Lambert & Co., 24 Q. B. D. 573. (2) Giblin v. M'Mullen, L. R. 2 P. C. 317; 38 L. J. P. C. 25: Deerman v. Jenkins, 2 A. & E. 256. |