1

The first case under the new Act was Tatam v. Reeve; and it was simply the antithesis of Read v. Anderson. In Tatam v. Reeve the defendant had expressly requested the plaintiff to pay his (the defendant's) lost bets, and afterwards refused to recoup him, and pleaded the Act of 1892. It was held that although the request to pay implied a promise to repay, yet the defendant was relieved by the Gaming Act of 1892, because the defendant's promise was to pay money which had been paid by the plaintiff in respect of contracts void by the Gaming Act of 1845.

But in the case of De Mattos v. Benjamin, the principal was plaintiff, and the betting agent was defendant; the claim was for money received by the agent on the principal's behalf; and it was held that the Act of 1892 applied only to money paid, and not to money received by the agent in respect of contracts void by the Act of 1845: and that therefore the principal was entitled to recover the winnings received by his betting agent on his behalf.

3

In the case of O'Sullivan v. Thomas, the plaintiff was held entitled to recover money which he had deposited with a stakeholder (to abide the issue of a race), and which the plaintiff had demanded back before the stakeholder had paid it over to the winner. The defendant pleaded the Gaming Act of 1892, but it was held that the word "paid" meant paid out and out, and not merely deposited with a stakeholder. This decision merely followed Hampden v. Walsh (which is not altered by the Act of 1892), and was approved by the Court of Appeal in Burge v. Ashley and Smith, Limited.1

In Carney v. Plimmer, the action was for money lent. The defendant had borrowed £500 from the plaintiff, who, at the defendant's request, deposited that amount with a

1 L. R. [1893], I Q. B. 44.

8 L. R. [1895], 1 Q. B. 698.

2 [1894], 63 L. J., Q. B. 248.

4 L. R. [1900], 1 Q. B., C. A. 744,

5 L. R. [1897], 1. Q. B., C. A. 634.

stakeholder; and the terms of the loan were that if the defendant won his wager he should repay plaintiff the money, but not otherwise. The defendant pleaded the Act of 1892. It was held (on appeal) that the transaction was not a simple loan of money, but money "paid in respect of a wager" within the meaning of the Act. It is thought, however, that Carney v. Plimmer decides nothing as to whether money lent to make bets is recoverable: to this we shall refer presently.

In Saffery v. Mayer, it was held that money paid by one partner (in a betting transaction) on the other's behalf in settling lost bets could not be recovered: for the Court of Appeal held that it was money paid in respect of contracts void by the Act of 1845, and therefore itself void by the Act of 1892.

The case of Moulis v. Owen is complicated by involving several issues, viz., effect of Gaming Acts, legality of consideration, and the Comity of Nations, which is sometimes called Private International law. In this case the defendant, having lost money at baccarat in Algiers (where the gambling debt was legal by the French law), had drawn in payment thereof a cheque on an English bank. The Court of Appeal reversed the decision of the King's Bench, and held that, as the cheque was drawn on an English bank, and as the consideration was "illegal" within the meaning of sect. I of the Gaming Act of 1835, therefore the plaintiff's action on the cheque could not be maintained. The case of Hyams v. Stuart King3 was somewhat similar to that of Bubb v. Yelverton. In this case (Hyams v. Stuart King) the defendant gave plaintiff a cheque for the amount of bets lost to him. At the request of defendant the cheque was held over for a time: subsequently a fresh verbal agreement was made, by which, in consideration of the plaintiff 1 L. R. [1901], 1 K. B., C. A. 11. 2 L. R. [1907], 1 K. B., C. A. 746. 8 L. R. [1908], 2 K. B., C. A. 696.

holding over the cheque for a further time and refraining from declaring the defendant a defaulter, the defendant promised to pay in a few days, but failed to do so.

It

It was held by the President, Sir Gorell Barnes, and Farwell, L.J. (upholding the decision of Darling, J.), that the forbearance of the plaintiff to declare the defendant a defaulter constituted a good consideration for a fresh agreement, and that the plaintiff was entitled to recover. mattered not that the cheque was given for an "illegal" consideration (under the Gaming Act of 1835), and that the original promise to pay was void by the Act of 1845. It was admitted that the original promise to pay was void by the Act of 1845, and (per the President) that the mere giving of time to pay that which cannot be enforced does not amount to consideration: but the plaintiff's forbearance to declare the defendant a defaulter was held new consideration for a fresh promise to pay.

To the present writer this decision has always seemed. totally indefensible. Farwell, L.J., said, “There is certainly nothing illegal in paying or receiving payment of a lost bet: it is one thing for the law to refuse to assist either party in their folly if they will bet; it is quite another to forbid the loser to keep his word."

Yes, but it is also one thing to allow the loser to keep his word, and quite another thing to allow him to be threatened and bullied into paying what was not legally due. Under the Act of 1845 the payment of a betting debt is (at best) simply denum gratuitum. There is nothing illegal in asking, offering, giving, or receiving a free gift; but to demand it with menaces (no matter what the menaces are) is an offence under statute 24 & 25 Vict., c. 96, sect. 44.

If the defendant had a right not to be sued at law on the original transaction, he had at least an equal right not to be threatened, or bullied, or subjected to any coercive process with a view to extorting money not legally due. Fletcher

Moulton, L.J., said in his dissenting judgment, "If a son loses a bet of £20 which he cannot pay, it makes no difference, in my mind, whether the bookmaker says, I will tell your father if you don't pay the bet, or I will tell your father if you don't give me £20. In the one case he is trying to get a contract to pay the bet, and in the other case a contract to pay blackmail. Neither of these contracts will be enforced by the Courts."

Farwell, L.J., says, "but blackmail (I quote The Oxford Dictionary) is to extort money from, by intimidation, by the unscrupulous use of official or social position, or of political influence or vote." But why go to the dictionary for the definition of an offence defined by statute?

Can it be that Farwell, L.J., considered that there was "reasonable and probable cause" within the meaning of sect. 44 of the Larceny Act (1861) for the menaces by means of which the plaintiff obtained the additional promise? Reasonable and probable cause is indeed recognised as a ground for compromising a suit in dubious cases wherein each party has a bona fide belief in his own right; but in this case the plaintiff could not have supposed that he had any legal claim at the time when he found it necessary to extract the additional promise. Even before perusing the report, it seemed to the present writer a plausible guess that the judges were influenced in their decision by some idea of the moral obligation to pay a betting debt. Now note the words of Farwell, L.J., "Everyone is entitled to enforce, if he can, the performance of a moral obligation." But we little thought that Farwell, L.J., would have so far stultified his ratio decidendi by invoking Mansfield law.

In Saxby v. Fulton1 we have another case of Private International law. In this case it was held that money lent at Monte Carlo for the purpose of gaming was recoverable in this country, because by the lex loci contractus there was no

1 L. R. [1909], 2 K. B., C. A. 208.

taint attaching to the transaction, and so far as this country was concerned it was merely an action for money lent. The case differs from Moulis v. Owen mainly inasmuch as in that case the action was on a cheque drawn on an English bank, the cheque being considered an English contract.

According to Anson, it was still undecided in 1912 whether money lent to make bets could be recovered. Professor Dicey was of opinion that though by the Act of 1835 securities for money lent for betting on games were void, yet the loans themselves were recoverable: that the Gaming Act of 1892 did not alter the law on the subject: that the words "money lent under or in respect of a wager were not meant by that Act to include money lent to make bets; and that money lent to pay lost bets was still recoverable.2

But in the case of Chapman v. Brownlow, it was held by Coleridge, J., in the King's Bench on January 11th, 1913, that money lent to make a bet, viz., to back a horse, was not recoverable.

3

In the same year as the Gaming Act (1892) there was passed the Betting and Loans (Infants) Act, which is directed against soliciting or inducing infants to bet or to borrow money. In addition to certain penal clauses, it provides that any agreement or instrument, including negotiable instruments, if made or given for the repayment of money representing or connected with a loan void at laware absolutely void (sect. 5). This places a negotiable instrument for a void loan made by an infant in a worse position than a negotiable instrument under the Gaming Act of 1835, and in the same position as a security or negotiable instrument under the Act of Anne (1710). In other words, the instrument being "absolutely void" is mere waste paper, and not even an innocent purchaser for value can recover upon it. 1 Law of Contract, 13th edit., p. 225.

2 Law Quarterly Review, 1904, p. 436.

8 55 & 56 Vict., c. 4.