CH. XXI. s. 5. legal, &c., Contracts (Wagering). "Cover" for Stock Universal Stock Exchange Co. 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 House of Lords, affirming the judgment of the Court of Appeal, in payment of Strachan v. Universal Stock Exchange (z). In that case the Exchange "differences." plaintiff's transactions with the defendants were upon certain Strachan v. elaborate general "terms of business" signed by him. One of the terms was that every purchase or sale was a bonâ fide transaction for delivery and not by way of wagering, but that postponement might be arranged for, another that no commission should be charged by the defendants, but that they should charge five per cent. per annum on the purchase-money of all stocks from purchase to completion, and another that the defendants should have a lien on all stocks of customers in their possession for the performance of any contracts entered into with power to realise in case of default. During the During the progress of transactions upon these terms, the plaintiff handed to the defendants securities for the performance of his contracts, and upon suing for their return was met by a claim of right to retain them as security for unpaid differences and interest. The jury, on the direction of Cave, J., found that the transactions were gambling transactions, and that everything should be returned to the plaintiff which the law allows, and both Courts of Appeal unanimously upheld the judgment for the plaintiff entered upon this finding. It was held, however, by the Court of Appeal on a second appeal in the same case (a), that money deposited as "cover" by the plaintiff, and appropriated by the defendants to meet the losses before the plaintiff gave notice to terminate the gambling transactions, could not be recovered by the plaintiff; and further, that the statute applies equally to money or valuable things deposited with the other party to bet as to those deposited with a stakeholder. It was the opinion of Lord Esher, M.R., that "when under such circumstances a person is so foolish as to give a deposit, even if he has won the wager, the person who has the deposit can refuse to pay it back." A wagering agreement arising out of "cover" transactions for Transaction "differences," with option of purchase superadded, is none the less for "differwagering it is merely a gaming transaction plus something else, (z) Strachan v. Universal Stock Exchange (No. 1), [1896] A. C. 166, aff., [1895] 2 Q. B. 329, C. A. (defendant's appeal); S. P., Cronmire, In re, Waud, Ex parte, [1898] 2 Q. B. 383, C. A., aff. Wright, J. (a) Strachan v. Universal Stock Ex change (No. 2), [1895] 2 Q. B. 697, ences" with option of purchase. Contracts Effect of saving for CH. XXI. s. 5. and is therefore void by sect. 18 of the Gaming Act, 1845. This was Ilegal, &c., held in a case where the agreement had provisoes that the dealer (Wagering). would deliver stock sold if the purchaser would pay an additional one-eighth or accept stock bought subject to discount for cash (b). The saving proviso of s. 18 of the Gaming Act, 1845 (p. 586, lawful games. ante), for lawful games does not except betting at billiards, even between the players themselves (c), nor a match between persons riding their own horses on the terms that the winner of the match should have both the horses (d), nor a walking match (e), nor does it legalise sweepstakes (which are illegal as lotteries) on horse-races (ƒ). Bets through agents in their own names. Read v. Gaming Act, 1892. prevent recovery from It was laid down by the Court of Appeal in Read v. Anderson (g), that where a turf agent is employed to bet in his own name, then if the bets, being lost, be paid even after revocation of the implied authority to pay them, the agent may still recover the money paid from the principal, on the ground that is well understood to be part of the bargain that the principal shall recoup his agent, and shall not revoke the authority to pay, but shall indemnify the agent against all payments made in the regular course of business (h). But the law of this judgment, which was very questionable (i), has been altered by sect. 1 of the Gaming Act, 1892, 55 & 56 Vict. c. 9 (k), as follows: : "Any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by the Act of the eighth and ninth Victoria, chapter one hundred and nine [see p. 586, ante], or to pay any sum of money by way of commission, fee, reward, or otherwise in respect of any such contract, or of any services in relation thereto or in connection therewith, shall be null and void, and no action shall be brought or maintained to recover any such sum of money." The Act covers more than the ground of Read v. Anderson, and extends to invalidate a promise to repay a person paying a bet Act does not though he had not been the promisor's agent to make it (1); but the Act does not prevent a principal from recovering from an agent, through whom he has made bets, money paid to the agent by the loser of the bets (m), in like manner as before the passing of the Act (n). The money won on such bets may be recovered by agent of bets De Mattos v. (b) Gieve, In re, [1899] 1 Q. B. 794. (c) Parsons v. Alexander (1855), 5 E. & B. 263. (d) Coombes v. Dibble (1886), L. R., (e) Diggle v. Higgs, supra, p. 588 (p). 431. (g) Read v. Anderson (1884), 13 Q. B. D. 779, diss., Brett, L.J. (h) Per Bowen, L.J. (i) Brett, L.J., dissented in Read v. Anderson, and Manisty, J., disapproved of it in Cohen v. Kittell (1889), 22 Q. B. D. 680. (k) Not retrospective, Knight v. Lee, [1893] 1 Q. B. 41. (1) Tatam v. Reeve, [1893] 1 Q. B. 44. (m) De Mattos v. Benjamin, [1894] 70 L. T. 560, per Lord Coleridge, C.J., and Day, J., reversing the judgment of Mr. Commissioner Kerr in the City of London Court. (n) See Bridger v. Savage (1885), 15 Q. B. D. 363, overruling Beyer v. Adams (1859), 28 L. J., Ch. 841. the principal from the agent, the Act not enabling one man who has money given him by another to pay to a third, to set them both at defiance and put the money into his own pocket, as was pointed out by Lord Coleridge, C.J., in De Mattos v. Benjamin. The position of the betting agent is that if he pays a lost bet he cannot recover it, but if he receives a won bet, it can be recovered from him (0). The Act applies to a loan for the purpose of depositing money for the purpose of a match; so that where the defendant and a third person agreed to a boxing match for 500l. a side, and the plaintiff lent the defendant 500l. to pay his deposit to a stakeholder with, he failed, upon the defendant winning and being paid both the stake and added money, to recover the money lent a very hard case, decided apparently on the ground that the plaintiff lent on the terms that if the defendant won he was to be repaid, but if the defendant lost, he was not (p). CH. XXI. s. 5. (Wagering). Gaming Act, 1892, contd. Loan to make deposit on match. But the Act does not apply to prevent a winner of a match Recovery of recovering his own stake from a stakeholder, though he cannot stake. recover the stake of the other party (q) and on the same ground the loser is entitled to recover, notwithstanding the Act. The Act, however, had been previously held not to apply to Stakeholder. money deposited with a stakeholder to abide the result of a race between the depositor and a third party (although such a transaction is a wagering contract), and therefore, as before the Act, a depositor having lost the race and demanding back the deposit before it had been paid over to the third party had successfully sued the stakeholder for its recovery (r). The Gaming Act, 1845, 8 & 9 Vict. c. 109, however, does not apply to bills of exchange or promissory notes given to secure gaming debts; for by the 15th section, the law as to these securities is left in the state to which it was altered by the Gaming Act, 1835, 5 & 6 Will. 4, c. 41. And by this latter statute, so much of the stat. 9 Anne, c. 14, as provided-" that all notes and bills given for any thing won by gaming or betting on the sides of such as game, or for repaying any money lent for such gaming or betting, or lent at the time or place of such play, to any person so gaming or betting, should be void "-is repealed; and, instead thereof, it is enacted, that every such note or bill shall merely be deemed, and taken to have been made, drawn, accepted, or given, for an illegal consideration, but shall not be absolutely void. (0) See Stewart v. Gill in the Westminster County Court, Law Times, Dec. 9th, 1899, at p. 126. (p) Carney v. Plummer, [1897] 1 Q. B. 234, C. A., reversing judgment of Day, J., without a jury. (a) Shoolbred v. Roberts, 81 L. T. Rep. 522, a billiard match in which the stake (r) O'Sullivan v. Thomas, [1895] 1 Bills, &c., to secure gaming debts. Contracts Bills for, of holder with notice, but CH. XXI. s. 5. Such instruments, therefore, are not void in the hands of a bona Illegal, & fide holder, without notice (s). And where A. and B. jointly made (Wagering). bets with third persons on a horse-race, and B. received the money, and gave A. a bill, accepted by C.-who was not a party to the void in hands betting-for his share it was held that the 8 & 9 Vict. c. 109, s. 18, did not preclude A. from recovering from C. the amount of not otherwise. such bill (t). But it is clearly settled that bills, &c., given to Woolf v. Hamilton. secure a gaming debt are void in the hands of a holder for value with notice, so that where a cheque was given by the defendant in payment of bets upon horse-races lost by him, and indorsed by the payee to the plaintiff for value with notice of the consideration for which it was given, the Court of Appeal held that the plaintiff could not maintain an action upon the cheque (u). Illegal gaming, when a defence to an action for If in an action for work and labour, it appear that the defendant retained the plaintiff to play at an illegal game, and that the action is brought to recover a recompense for his having played work, money at such game, the plaintiff cannot recover (x), and money knowingly lent, for the purpose of enabling the borrower to game or play therewith at an illegal game, is not recoverable (y). lent, &c.; But an action will lie to recover money lent by the plaintiff to the defendant, to enable him to pay a bet which he has already or on a bond. lost (z); and where a bond has been given to S. and U.-to whom the obligor had lost bets on horse-races which he was unable to pay—in order to prevent them from "posting" the obligor at Tattersall's as a defaulter; it was held that this constituted a good consideration for the bond, independently of the racing debt; and that the bond was therefore valid (a). Gambling insurances. Stock Exchange gambling. If money be won at play, or lent for the purpose of gambling, in a country where gaming is not illegal, such money may be recovered in the Courts of this country (b). Gambling insurances, which are prohibited by the Life Assurances Act, 1774, 14 Geo. 3, c. 48, and Stock Exchange speculations, which may or may not come within the Gaming Act, 1845, 8 & 9 Vict. c. 109, s. 18, have been also dealt with in other parts of this book (c). (s) Per Cur., Hay v. Ayling (1851), 16 Q. B. 423; 20 L. J., Q. B. 171, 174. (t) Johnson v. Lansley (1852), 12 C. B. 468; and see Beeston v. Beeston (1875), 1 Ex. D. 13. (u) Woolf v. Hamilton, [1898] 2 Q. B. 337. (x) Coates v. Hutton (1821), 3 Stark. 61. (y) M‘Kinnell v. Robinson (1838), 3 M. & W. 434; per Jessel, M.R., Ex parte Pyke (1878), 8 Ch. D. 754, C. A. (2) Ex parte Pyke (1878), 8 Ch. D. 754, C. A. If, however, the money had been won by "any fraud or unlawful device, or ill practice," within the meaning of the Gaming Act, 1845, 8 & 9 Vict. c. 109, s. 17, perhaps it would be otherwise. See Cannan v. Bryce (1819), 3 B. & Al. 179; 22 R. R. 342. (a) Bubb v. Yelverton (1870), L. R., 9 Eq. 471. (b) Quarrier v. Colston (1842), 1 Ph. 147, App. 66 (c) See ante, Ch. XX., sects. 3, 6, and Chitty's Statutes, tit. Insurance," at pp. 3, 25. CH. XXI. s. 5. legal, &c., Contracts (Wagering). Horse-racing would now appear to be entirely regulated by the Gaming Act, 1744, 18 Geo. 2, c. 34; for those parts of 13 Geo. 2, c. 19, which provided that no horse should be entered, or start or run for any plate, except by the owner, were repealed by 3 Vict. Horse-racing. c. 5, s. 1; whilst the enactments of the Gaming Act, 1744, 18 Geo. 2, c. 34, so far as they relate exclusively to horse-racing, appear not to be affected by the Gaming Act, 1845, 8 & 9 Vict. c. 109 (d). And since the repeal of 13 Geo. 2, c. 19, it has been held that a horse-race for money given by third persons, by way of prize, is not illegal (e); and that a steeple-chase for 501. or upwards is a lawful race within the Gaming Act, 1744, 18 Geo. 2, c. 34 (f). The Lottery Acts (g) prohibit lotteries by varying descriptions, The Lottery the Act of 1698, 10 Will. 3, c. 17 (c. 23 in the Revised Statutes), Acts. and the Gaming Act, 1802, 42 Geo. 3, c. 119, prohibiting them both specially and generally, and the Lotteries Act, 1823, 4 Geo. 4, c. 60, " for granting to his Majesty a sum of money to be raised by way of lottery." Under the general words of these Acts are comprised "sweepstakes," by which many subscribers, before a Sweepstakes. race, draw by lot the names of the entered horses on the terms that the drawer of the winning horse shall be entitled to the whole amount subscribed (h), with the result that the winning subscriber could not recover his winnings from the treasurer of the fund subscribed (who appears upon the rule in pari delicto, &c., to have a better legal title than he thereto), and that the treasurer could not recover from the subscribers unpaid subscriptions. Pearson. A physical lot is not essential to the kind of lottery prohibited Competitions. by the Lottery Acts, and a public "missing word competition" in Barclay v. which the winners are they who select, to fill up a named sentence, a particular word also selected by the promoter of the competition, was held to be within the Act of 1802, and illegal, so as to prevent a Court assisting in the distribution of the fund made up by the subscriptions of the competitors (i); but a newspaper offer of a prize for a correct prediction of the number of births and deaths in (d) See sect. 15. In the case of Batty v. Marriott (1848), 5 C. B. 818, Wilde, C.J., said that it was quite clear that horse-racing was not intended to be discouraged" by that statute; id. 828. 66 (e) Applegarth v. Colley (1842), 10 M. & W. 723. (f) Evans v. Pratt (1842), 3 M. & G. 759, and see Jenks v. Turpin (1884), 13 Q. B. D. 505, where the Gaming Acts are reviewed by Hawkins, J. (now Lord Brampton). (g) See Chit. Stat., 5th ed., tit. "Games, Gaming, Betting, and Lotteries." (h) Allport v. Nutt (1845), 1 C. B. 974; Gatty v. Field (1846), 9 Q. B. 431. The organiser of a sweepstakes to be sub C.C. scribed and drawn at his house, though (i) Barclay v. Pearson, [1893] 2 Ch. "Here is a little experiment which is well worth showing to your friends. Procure a bit 38 |