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Cite as: [1871] SLR 8_636, [1871] ScotLR 8_636

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SCOTTISH_SLR_Court_of_Session

Page: 636↓

Court of Session Inner House First Division.

Saturday, July 8. 1871.

8 SLR 636

Calder

v.

Stevens.

Subject_1Factum Illicitum
Subject_2Sponsio Ludicra.

Facts:

The prize at a racing meeting having been admittedly gained by a certain horse, the owner of the horse raised an action against the stake-holder for the amount of the stakes in his hands— Action sustained, repelling the plea that its purpose was to give effect to a sponsio ludicra.

Headnote:

This was an action in the Sheriff-court of Haddington by Robert Calder, farmer, Kelloemains, against G. H. Stevens, innkeeper, Gullane. The Sheriff-Substitute ( Shirreff), after some procedure, repelled preliminary pleas stated by the defender, and the facts and pleas are fully stated in the following Note, appended to his interlocutor:—“This is an action at the instance of the owner of horses that ran in two of the races at what was called ‘The Gullane Spring Race Meeting,’ held early in the year 1868. The defender consigned the stakes lodged with him by the pursuer which are sued for, and of consent of the defender, warrant was granted by interlocutor of 28th January 1869 for payment of the money to the pursuer. The conclusions of the action still insisted in are therefore only for the stakes lodged by the owners of the four horses that ran along with the pursuer's mare ‘Jungle Queen,’ in the race called the ‘Gullane Hurdle Handicap,’ and for the £20 of added money, which the pursuer maintains he is entitled to as the owner of ‘Jungle Queen,’ the winner of that race.

“The defender admits that he collected funds for the races, that he acted as clerk of the course, and did the duty falling on him in that capacity; he also admits that the pursuer's horse won the ‘Gullane Hurdle Handicap.’

The dilatory pleas are,— First, That the action being for a game or gambling debt or claim, it is incompetent, the claim being illegal and not actionable; and Second, That under the rules in the programme of the meeting (No. 8 of process), the claim sued for ought to have come before the stewards of the races, and the pursuer is barred from bringing it in ‘a civil court.’

As to the first of these pleas, there are two grounds on which actions to enforce claims arising out of races are incompetent—where it is sought to settle a question of sponsio ludicra, or where an action is brought to recover what has been wagered or betted on the result of a race.

To ask a court of justice to settle which horse has won a race is clearly incompetent, and no action will be sustained where to its disposal it is necessary to settle such a question, or to make any other inquiry into the conduct of games or sports, — O'Connell v. Russell, 25th November 1864, (3 Macph., p. 94); Paterson v. M'Queen and Kilgour, 17th March 1866 (4 Macph., p. 602). But there is no question of sponsio ludicra to be disposed of here; there is no dispute that the pursuer's horse, ‘Jungle Queen,’ won the race in question.

The defender pleads that the action is for ‘ a game or gambling debt.’ It is undoubted that no action can be sustained for such a debt; or for any claim founded on a wager or bet (Bell's Prin., sec. 36; 1 Bell's Comm., p. 300, 5th edit.). ‘It is a fixed rule in the law of Scotland that no action will lie for enforcing a wager’ (2 More's Lectures, p. 282). But, as was remarked by Lord Ardmillan at advising O'Connell v. Russell, 25th November 1864 (3 Macph., p. 94), ‘it is not the racing that is illegal; but the gambling attendant on racing is illegal, and no court of justice will give decree for recovery of money so won.’ Wagering or betting on the result of the races is just the gambling which is illegal, and courts will not enforce payment of debts thereby incurred, Wordsworth v. Pettigrew, 1779 (Mor., p. 9524). But the claim here is not grounded on a wager or bet, to which it is essential that there is something staked to be lost or won (Webster's Dictionary). In this case there was nothing staked to be lost or won by the defender; nothing was ventured to be lost or won, either by him or by the parties who had subscribed money for the race. There was no risk of loss incurred by any of the parties who competed ill the race. This is an action for payment of. a prize offered lo the horse of greatest speed of those which should compete for it, to be ascertained by a race, the money to pay which is averred to have been collected by the defender from the public for the express purpose of providing such prizes, and is in the defender's hands (at this stage these averments must be assumed to be true). There is an opinion by Lord Mackenzie, in delivering judgment in the case of Graham v. Pollock, 5th February 1848 (X. D. P. 648), that the Court will interfere to compel the holder of such a prize to deliver it to the competitor adjudged to be the winner. The other judges, forming the majority
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in that case, viz., Lords Fullerton and Jeffrey, seem to be of the same opinion.

No question of sponsio ludicra being raised in this case, and the claim being for a prize offered to the winner of a race, and not founded on a wager, the Sheriff-Substitute is humbly of opinion that the first dilatory plea must be repelled.

2. The Sheriff-Substitute is of opinion that the second dilatory plea should also be repelled. The whole questions for the stewards of a race meeting have been disposed of, or the parties have not required the decision of the stewards. The functions of the stewards were at an end when it was settled who was the winner of the race.

Lastly, the pursuer avers (cond. 3) that the defender has in his hands funds to meet the pursuer's claims. This is denied by the defender. The Sheriff-Substitute is of opinion that the defender cannot be held liable for the prizes offered beyond the amount he collected for the purpose of the race meeting. The Sheriff-Substitute has therefore allowed the pursuer a proof of his averments as to the amount of funds in the hands of the defender, and to the defender a counter-proof.”

The Sheriff ( Shand) adhered.

After a proof had been led the Sheriff-Substitute found that the defender had no funds in his hands. The Sheriff recalled this judgment and pronounced an interlocutor in the following terms:—“Finds that the defender received entry-monies, or sums deposited to the amount of £12, in addition to the sum of £3 paid to him by the pursuer, from persons whose horses ran in the Gullane Hurdle Handicap Race at the Gullane Spring Meeting of 1868, on the arrangement that such entry-monies or deposits should be paid, along with certain added money from expected subscriptions, as a prize to the owner of the horse which should win the race or competition: Finds it is admitted that the pursuer's horse was successful in the race; finds that the defender has failed to prove any facts or circumstances which entitled him to pay away the said sum of £12 on account of expenses disbursed by him in relation to the said race or meeting, or to pay away the same to any person other than the pursuer, and, separatim, that he has not proved that said sum, or any part thereof, was in fact paid away on account of expenses or otherwise; finds, in these circumstances, that the defender had at the date of the present action funds in his hands, received as aforesaid, which he was bound to pay over to the pursuer, irrespective of the sum of £6 already consigned in process and paid over to him: therefore finds the defender liable to the pursuer in the sum of £12, with interest as concluded for; quoad ultra assoilzies the defender from the conclusions of the action, except as to expenses; finds the defender liable to the pursuer in expenses, and remits,” &c.

The defender appealed.

Fraser and Scott for him.

Solicitor-General and Marshall for respondent.

At advising—

Judgment:

Lord Justice-Clerk—The question now in dispute relates to a sum of £20, being the amount of stakes at a race. The defender is the clerk of the course, and he maintains that he is not bound to pay that amount. The defence is, (1) that the subject matter of the action is such that a court of law will not consider; and (2) that it was a condition of the race meeting that the expenses were to be paid out of the funds in the hands of the stake-holder, before the stakes were given; and that the expenses exceeded the amount contributed. In order to make out this second plea the defender must show that it was a condition of the deposit that the expenses were to be paid out of the stakes. He must show that the pursuer was a sort of joint adventurer. The pursuer states—“The monies advertised in the programme of the races were offered unconditionally, that is, they were not stated to be dependent on any particular sums being realized by subscription or otherwise; and the pursuer's horses were entered and run at the meeting on the faith and understanding that the monies were offered bona fide, and would be paid to the winners thereof.” The statement in answer is—“Denied, with this explanation,—it was implied, if not thoroughly understood by all parties, that the race winnings would depend on the amount of subscriptions realized, and the pursuer, from his racing knowledge, well knew this.” The defender states again, in his own statement of facts—“The pursuer, anterior to the races, never asked the defender to become good for any winnings he might acquire; and never antecedently apprised him he would hold him responsible. Further, the defender never said he was or would be responsible, and he avers the pursuer spontaneously came forward to the sport as a joint contributor, and became a party to the joint adventure, taking his chance of payment if he gained.” I am of opinion that these statements must be read as applicable not to the stakes but to the added money. But I do not think that the defender intended that the stakes should be subject to deduction for expenses, or that there was any such condition attached to the deposit. It is quite clear upon the figures that the defender has sufficient funds in his hands to pay all the expenses of the meeting, and the stakes to all the winners, the added money being now out of the case.

The defender, then, having money in his hands, says that the subject matter of the action is so tainted that a court of law will not inquire to whom that money belongs. This is not a plea that the Court will look upon favourably. Betting and gambling upon horse races has been discouraged by the civil law and by statute. It was maintained that the Act 1621 made horse-racing, and all that was connected with it, illegal. But that statute does nothing of the sort. It was illegal to wager on racing before the statute was passed, and it gave a means of disposing of money gained by wagers. Bets are illegal, on the ground that they are sponsiones ludicræ, and they obtained a statutory legality for the purpose of getting the money paid to the poor. In England a similar result is reached by somewhat different means. There it is held that the unsubstantial nature of the transactions is enough to prevent the courts of law taking cognisance of them. In Scotland we have to some extent adopted this view. Mr Bell in his Commentaries (ii, 1, 1,) says—“By the law of Scotland a rule has been followed on the subject of wagers which is opposed to that of the English law, but which English judges of the highest name have regretted that it is almost too late to adopt in England.” And he then quotes the opinion of Lord Mansfield and Mr Justice Ashhurst, in which they regret that there is no law in England similar to our law of gaining, and refer to the Scotch case of Bruce v. Ross. If the question were, which horse won the race, we could not perhaps decide that on the ground that it was a sponsio ludicra. Now;

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under the civil law sponsio was a contract to deposit a sum in Court to await the result of a lawsuit. In the title of the Digest, De Aleatoribus (11, 5, 2,) this distinction is made—“ Senatus consultum vetuit in pecuniam ludere; præterquam si quis certet hasta vel pilo jaciendo vel currendo, saliendo, luctando, pugnando, quod virtutis causa fiat.” A cutamen de virtute, therefore, did not fall under the description of sponsio ludicra. This involves the distinction between a game and a bet upon a game. There is nothing illegal in a game. What is illegal is making it the subject of a bet. The cases are quite consistent with the view that horse-racing is a lawful pastime. In the case of Graham the Court had no difficulty in entertaining the question to whom a picture, which was a prize at a coursing meeting, should be given. The case of O'Connell was not about a prize, but a bet of £100 to £57, that one horse should beat another. A good illustration of the principle is a prize at a rifle meeting. We could not entertain the question which of the competitors had made the highest score, but in the event of there being no dispute who was entitled to the prize, we could give decree against the holder of the prize. Here then is a pure question of the contribution of 5 parties, having paid their money into the hands of the stake-holder, who does not deny receiving it, nor is there any dispute as to who is entitled to receive the money. There is no difficulty as to our jurisdiction.

The other Judges concurred, and the Court adhered to the Sheriff's judgment.

Solicitors: Agent for the Pursuer— Alex. Cassels, W.S.

Agent for the Defender— W. S. Stuart, S.S.C.

1871