Contracts contract from good. CH. XXI. s. 5. cases where the statute enacts that an agreement or deed made in Megal, &c., violation of its provisions shall be wholly void (y). And if this be (By Statute). not so, then, provided the good part be separable from and not Separability dependent on the bad, that part only will be void which contravenes of bad part of the provisions of the statute (z). Thus a covenant in a lease that the tenant should pay the landlord's property-tax,—although illegal and void, does not affect the validity of the rest of the instrument (a), and in like manner, although the grant of a rent-charge on a benefice may be void as regards the charge; yet a personal covenant in the deed of grant, to pay the rent, is not therefore invalid (b). Entire contract, partly void under Statute of Frands. Matters pro But it seems, that if part of an entire parol contract be void under the Statute of Frauds for want of writing, the agreement is void in toto (c). Clearly, if an Act of Parliament expressly prohibit the transaction hibited under in respect whereof an agreement is entered into (d), such agreea penalty. ment will be invalid. And so a contract may be illegal, although it be not in contravention of the specific directions of a statute, provided it be opposed to the general policy and intent thereof (e); and the rule is the same although there be no clause expressly prohibiting a certain act, but merely a penalty for doing it. So, it was ruled by Holt, C. J., in Bartlett v. Vinor (f), and by Lord Hatherley, In re Cork, &c., R. Co. (g), and is now quite settled (h). But a sale at a market of an animal diseased within the meaning of the Diseases of Animals Act, 1894, which prohibits the sending diseased animals to market, does not render the seller liable to the purchaser for damages resulting from the disease (i). Accordingly it has been held that a sale of coals, without the delivery by the vendor of the ticket required by statute (k), is (y) Per Gibbs, C. J., Doe v. Pitcher (1815), 6 Taunt. 359, 369. (z) See Payne v. Mayor of Brecon (1858), 3 H. & N. 572; Pallister v. Mayor of Gravesend (1850), 9 C. B. 774. (a) Gaskell v. King (1809), 11 East, 165; 10 R. R. 462; and see Wigg v. Shuttleworth (1810), 13 East, 87; Howe v. Synge (1812), 15 East, 440. (b) Mouys v. Leake (1799), 8 T. R. 411; Gibbons v. Hooper (1831), 2 B. & Ad. 734. See also Greenwood v. The Bishop of London (1814), 5 Taunt. 727; 15 R. R. 627; where the Court separated the simoniacal part of a transaction from that part which was legal, and allowed the latter to prevail. (c) Mechelen v. Wallace (1837), 7 A. & E. 49; Head v. Baldrey (1837), 6 A. & E. 459. (d) As an agreement to perform at an unlicensed theatre; Levy v. Yates (1838), 8 A. & E. 129. (e) Steaines v. Wainwright (1839), 8 Scott, 280. (f) Bartlett v. Vinor (1693), Carth. 252. (g) Cork, &c., R. Co., in re (1869), L. R. 4 Ch. 748 (Lloyd's Bonds). (h) Taylor v. Crowland Gas Co. (1854), 10 Ex. 293; Cundell v. Dawson (1847), 4 C. B. 376, 399; Little v. Poole (1829), 9 B. & C. 192; and see Maxwell on Statutes, 3rd ed., at p. 554. (i) Ward v. Hobbs (1878), 4 App. Cas. 13, decided on the expired Contagious Diseases Act, 1869. (k) 1 & 2 Vict. c. ci. (the since expired Coal Duties Act), s. 3. Contracts legal, &c., (By Statute). servant of void (1). So, a contract to carry on a business in partnership, in CH. XXI. 8. 5. a manner prohibited by statute under a penalty is void (m); and the effect of s. 193 of the Public Health Act, 1875, by which servants of a local authority may not be interested in any Contract by contract with such authority, and any servant so interested "shall interested forfeit and pay" 50l., is that any such contract is illegal, and that public authothe contracting servant cannot sue the local authority thereon (n). rity. Where a statute prescribes "registration," unless it makes Omission to register registration imperative under pain of nullity, the statute is merely directory and the registration a matter of procedure. This seems statute. to follow from the case in which the House of Lords upheld the validity of debentures not registered under s. 43 of the Companies Act, 1862 (o). according to a Rule where the statute imposes a But if a contract be made in violation of the provisions of statute, and the effect of such statute be merely to impose a penalty on the offending party, for the benefit of the revenue, and penalty, merely for not to prohibit the act done, or avoid the contract itself; the fact the purpose of such provisions not having been complied with will not invali- of revenue. date the contract (p). And, accordingly, it has been held, that the provisions of the Excise Licence Act, 1825, 6 Geo. 4, c. 81, ss. 25, 26,—which subject to penalties any dealer in or seller of tobacco, who shall not have his name painted on the entrance to his premises, or who shall sell tobacco without taking out a licence, -do not avoid a contract for the sale of tobacco, made by a dealer who has not complied with those provisions (q). not become Nor will a contract, which was not illegal when made, become Contract will illegal by relation; although the party making it was bound by illegal by law, under a penalty, to do a subsequent act which he has neglected relation." to do (r). Thus, a solicitor may recover for work done during the period allowed him for entering his certificate, although he may have become liable to a penalty for not entering it before the expiration of that period (s). alteration in Where the law is altered by statute, pending an action, the Effect of rights of the parties will be decided according to the law as it the law pendexisted at the time the action was commenced, unless the statute ing an action. shows a clear intention to vary such rights (t). (1) Cundell v. Dawson (1847), 4 C. B. 376; and see Smith v. Wood (1889), 24 Q. B. D. 23, C. A., and the Weights and Measures Act, 1889, s. 21. (m) Armstrong v. Lewis (1834), 2 C. & M. 274, Ex. Ch. (n) Melliss v. Shirley Local Board (1885), 16 Q. B. D. 446; and see p. 301, ante. (0) Wight v. Horton (1887), 12 App. Cas. 371. (p) See Bailey v. Harris (1849), 12 Q. B. 905. (q) Smith v. Mawhood (1845), 14 M. & W. 452. (r) See per Jessel, M. R., Re International Pulp and Paper Co. (1877), 6 Ch. D. 556, 560. (8) Eyre v. Shelley (1840), 6 M. & W. 269. (t) Hitchcock v. Way (1837), 6 A. & E. 943. C.C. Q Q (b) Gaming and Wagering (u). By the common law of England, an action might be maintained on a wager, although the parties had no previous interest in the question on which it was laid, provided it was not against the interest or feelings of third parties, or did not lead to indecent evidence, or was not contrary to public policy (v). But this state of the law was from time to time materially altered by statute; and at length, it was enacted by the Gaming Act, 1845, 8 & 9 Vict. c. 109, s. 18, that— "All contracts or agreements, whether by parol or in writing, by way of gaming, or wagering, shall be null and void; and 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." This enactment, it is of great importance to observe, does not make gaming or wagering contracts illegal, but merely void. "A wagering contract within the statute is one," it is said by Hawkins, J., "by which two persons, professing to hold opposite views touching the issue of a future uncertain event, mutually agree that, dependent upon the determination of that event, one shall win from the other, and that other shall pay or hand over to him a sum of money or other stake; neither of the contracting parties having any other interest in that contract than the sum or stake he shall so win or lose, there being no other real consideration for the making of such contract by either of the parties. It is essential to a wagering contract that each party may under it either win or lose, whether he will win or lose being dependent on the issue of the event, and therefore remaining uncertain until that issue is known. If either of the parties may win but cannot lose, or may lose but cannot win, it is not a wagering contract. It is also essential that there should be mutuality in the contract. For (u) See Stutfield on Betting, Time (v) Per Lord Campbell, Thackoorsey- ourses à pied ou à cheval, les courses de chariot, le jeu de paume, et autres jeux de même nature, qui tiennent à l'adresse et à l'exercice du corps, sont exccptées de la disposition précédente, néanmoins le tribunal peut rejeter la demande, quand la somme lui paraît excessive."--Code Civil, bk. 3, tit. 12, c. 1. And by the French law, the sum cannot in any case be recovered back if voluntarily paid, unless there was fraud. Contracts instance, if the evidence of the contract is such as to make the CH. XXI. s. 5. intentions of the parties material in the consideration of the ques- Illegal, &c., tion whether it is a wagering contract or not, and those intentions (Wagering). are at variance, those of one party being such as if agreed in by the Definition of other would make the contract a wagering one, whilst those of the "gering contract" by other would prevent it from becoming so, this want of mutuality Hawkins, J. would destroy the wagering element of the contract and leave it enforceable by law as an ordinary one (x). No better illustration can be given of a purely wagering contract than a bet on a horse race. "One other matter ought to be mentioned, namely, that in construing a contract with a view to determining whether it is a wagering one or not, the Court will receive evidence in order to arrive at the substance of it, and will not confine its attention to the mere words in which it is expressed, for a wagering contract may be sometimes concealed under the guise of language which on the face of it, if words were only to be considered, might constitute a legally enforceable contract. Such was the case in Brogden v. Marriott (y), in which under the guise of a contract for the sale by the defendant to the plaintiff of a horse at a price to depend on the event of a trial of its speed and staying power, there was concealed a mere bet of the defendant's horse to 2001. that the horse within a month should trot eighteen miles within an hour. The defendant's horse having failed to accomplish the task set him, the plaintiff claimed the horse at a nominal price of 18. The nature of this contract was transparent to any person of ordinary intelligence, and the plaintiff in vain argued that it was a bonâ fide conditional bargain. The Court held it to be nothing more nor less than a mere wagering contract prohibited by the then unrepealed statute 9 Ann. c. 14" (z). A deed given by the defendant to the plaintiff, purporting to Application of Gaming secure the repayment of money lent by the former to the latter, but Act, 1845, which was actually advanced upon an agreement between them that, s. 18. out of it, the defendant should pay the plaintiff money which he had won from the defendant by betting, was held void under this statute (a) and so was a bonâ fide contract between the plaintiff and the defendant, for the sale and purchase of goods; where the price was to depend on the result of a wager, as to the price at which a former lot of similar goods had been sold by the plaintiff to (r) See Grizewood v. Blane (1853), 11 C. B. 526; Thacker v. Hardy (1878), 4 Q. B. D. 685, C. A. (y) Brogden v. Marriott (1837), 13 Bing. N. C. 88. . () Per Hawkins, J., in Carlil v. Carbolic Smoke Ball Co., [1892] 2 Q. B. (a) Hill v. Fox (1859), 4 H. & N. 359, CH. XXI. s. 5. the defendant (b); and an agreement with a tipster that if a bet on Illegal, &c., a horse named by him should be made and won he should have Contracts (Wagering). part of the winnings (c). The Statute avoids an agreement to walk a match for 2001. a side (d), a bet with A. that A.'s horse will not trot eighteen miles within an hour (e), and a bet with A. that A. will not prove the convexity of any canal or river to the satisfaction of referees (ƒ). The statute also applies, as between principals, to Stock Exchange contracts if neither of the contracting parties really means to sell or buy (g), but not to the very common case of the employment of a broker to buy stock which the principal does not mean to accept and to sell stock which the principal does not mean to deliver, although the broker knows that only "differences" will be received or paid as the stock may rise or fall by the principal (h), or to the bonâ fide sale of an undeclared dividend (i). The statute nullifies any right of action against a betting agent by his principal for not making bets for him in accordance with his instructions (k). Securities deposited with a broker as "cover" for the payment of "difference" upon the rise or fall of stocks, &c. on speculative transactions for the fictitious sale or purchase of them, are not "valuable things deposited in the hands of a person to abide the event " of a wager within the statute, and may be recovered by the employer from the broker. This was held by the Court of Appeal in Strachan v. Universal Stock Exchange (1), where the employer had revoked the authority to retain the securities before the broker had realised them, and it was held that he might legally do so, and therefore have another ground for maintaining his action for recovery of the securities (l). But it is submitted that the judgment would have been the same even if there had been no such revocation, and further, that the value of realised cover on speculative transactions of this kind could be recovered. It was shortly afterwards held, however, on a second appeal in the same case (m), that money deposited as "cover" by the plain (b) Rourke v. Short (1856), 5 E. & B. 904. (c) Higginson v. Simpson (1877), 2 C. P. D. 76. (d) Diggle v. Higgs (1877), 2 Ex. D. 422, approved in Trimble v. Hill (1880), 5 App. Cas. 342. (e) Batson v. Newman (1876), 1 C. P. (f) Hampden v. Walsh (1876), 1 v. Blane (1853), 11 (h) Thacker v. Hardy (1878), 4 Q. B. D. 685, C. A.; Universal Stock Exchange v. Stevens (1892), 66 L. T. 612, per Romer, J. (i) Marten v. Gibbon (1876), 33 L. T. 561, C. A. (k) Cohen v. Kittell (1889), 22 Q. B. D. 680. (1) Strachan v. Universal Stock Exchange (No. 1), [1895] 2 Q. B. 329, C. A. (defendant's appeal); affirmed by H. L., W. N. for March 28th, 1896. (m) Strachan v. Universal Stock Ezchange (No. 2), [1895] 2 Q. B. 697. C. A. (plaintiff's appeal against that part of judgment of Cave, J., holding that the deposit was irrecoverable); in har |