(g) This statute would seem not to apply to contracts to be performed abroad, but only to contracts where the goods are to be weighed or measured in this country. See Rosseter v. Cahlmann, 8 Ex. 361; 22 L. J. (Ex.) 128, a decision under 5 & 6 Will. 4, c. 63, now repealed.
(h) See, as to what amounts to a company formed before the commencement of the Act, and which therefore does not require registration under it, Shaw v. Simmons, 12 Q. B. D. 117; 53 L. J. (Q. B.) 29.
* I have now touched upon the classes of contracts invalidated by express enactment, which are of most frequent practical occurrence, and it remains to mention one point arising from a statute of the last reign, which has done away with a distinction which was formerly found an exceedingly troublesome one, and frequently very unjust in its operation.
You are probably aware that the general rule of the law of England was, until altered by recent legislation, that a contract was not assignable; that is, that a man who had entered into a contract could not transfer the benefit of that contract to another person, so as to put that other person in his own place, and entitle him to maintain an action upon it in case of its non-performance. That rule has indeed been altered by the Judica-ture Act of 1873, and an assignment of a contract or other chose in action is now valid if made in accordance with the provisions of that Act (k). But you are promissory notes, which, by the statute 3 & 4 Anne, c. 9, were placed on the same footing as bills of exchange (I). Now, where some one of these *in-struments had been made upon an illegal consideration : where, for instance, a bill of exchange was accepted for an illegal gambling debt, it is obvious that no action could be maintained between the original parties to it; for instance, in the case I have just put, by the drawer of such a bill against the acceptor of it; for, as between them, it is the common case: they both knew of the illegality, and nevertheless, with their eyes open, made it the consideration of their contract. But where the instrument had gone out of the hands of the person to whom it was originally given, and had got into the hands of some third person, the case is very much altered; for he might not, and probably did not know of any illegality; and if he did not, it was hard that he should lose the benefit of that for which he had paid, in consequence of the illegal act of other persons, in which he did not participate, and of which he did not know. For instance, to take again the same example: A. loses £100 to B. at whist, and accepts a bill for the amount. If B. afterwards sues A. on that bill, and A. pleads the illegality, this, though not in conformity with the principles of honour, cannot be said to be a hardship upon B., for he knew when he sat down to play, and he knew when he drew the bill, that he could not enforce such a demand. But suppose, instead of himself suing on the acceptance, he had *procured C. to discount it, and had endorsed it to him, and C. had paid full value for it, and knew nothing of the gaming debt for which it was given, in such a case
(i) Shaw v. Benson, 11 Q. B. D. (C. A.) 563; 52 L. J. (Q. B.) 575. This case follows Jennings v. Hammond, 9 Q. B. D. 225; 51 L. J. (Q. B.) 493; which is a similar decision in the case of an unregistered benefit society with like objects to those of the society mentioned in the text. See also In re Padstow Total Loss and Collision Assurance Association, 20 Ch. Div. 137; 51 L. J. (Ch.) 344; In re South Wales Atlantic Steamship Co., 2 Ch. Div. 763; 46 L. J. (Ch.) ' 77, where the companies were held illegal, not being registered under s. 4. In Smith v. Anderson, 15 Ch. Div. 247; 50 L. J (Ch.)39; an investment trust for a number of certificate holders, the trustees being under 20 in number, was held not to be within the meaning of s. 4, and therefore legal, though unregistered.
(k) By 36 & 37 Vict. c. 66 (Supreme Court of Judicature Act, 1873), s. 25, sub-sec. 6, "Any absolute assignment, by writing under the hand of the assignor
*probably also aware that there are some contracts which, irrespectively of the Judicature Act, 1873, are, by the operation either of a statute or of some peculiar rule of commercial law, exempted from the operation of the above rule, and rendered transferable in the same way as any other property from man to man.1
Such are bills of exchange, which, by the law merchant are transferable by endorsement, if payable to order; by delivery, if payable to bearer. Such, too, it would be an exceedingly hard thing indeed to prevent C. from recovering the amount from the acceptor. Yet, notwithstanding this, there were till lately several cases in which he would have been precluded from doing so.1 The law stood thus :-Whenever illegality depended on the common law, or on an Act of Parliament which did not in express terms render the security void, there the Courts applied the rule which reason and justice dictate, and held that the person who had given value for the security, and had taken it without notice that it was affected by an illegality, was entitled to recover upon it. There were, however, some cases in which, by the positive enactments of particular statutes, the security was rendered void. Such, for instance, was an acceptance of the description I have just supposed, given for a gaming debt. Such, also, at one period, was a bill or note given upon an usurious consideration. But the hardship in the case of usury was found so great, that a particular Act (58 Geo. III., c. 93) was passed in order to put an end to it. And at length, stat. 5 & 6 Will. IV., c. 41, has altogether abolished the distinction and the grievances which it occasioned, by enacting that such instruments shall be no longer void, but shall be deemed and taken to have been given for an *illegal consideration; the consequence of which is, that they are still void as between the original parties, and also as against all persons who have taken them with the notice of illegality, or after they had become overdue, or without giving value for them; but good in the hands of every person who has given value, and taken the instrument, before it was due and bond fide}