Scottish Court of Session Decisions

Charles M'Bride, residing in Edinburgh, resolved to dispose of a trotting pony, named “Boy G,” by a subscription sale on the Art Union principle, and announced that the drawing of the tickets for the said sale, which were to cost one shilling each, would take place at 29 Lothian Road on 4th May 1881. William Christison purchased one of the tickets—No. 160—which proved to be the winning number. Accordingly, in answer to an advertisement in the Scotsman on 5th May to that effect, he presented this ticket to M'Bride, and requested delivery of the pony. This request having been refused, the present action was raised in the Sheriff Court of Midlothian to have M'Bride ordained to give up the pony. The defender averred in his condescendence that besides the pursuer himself, the pursuer's son, a Mr Rafferty, auctioneer, who stated he had purchased the ticket from the former, and Mr Munro, had all claimed the pony. Being at a loss therefore to determine who really was entitled to delivery of the pony, he offered, although he was not under any legal obligation, to deliver it up on receiving possession of the winning ticket, with the receipt of the different claimants, but after deduction of the expense of keeping the pony from the date of the drawing.

He pleaded—“(1) The subscription sale founded on having been merely a lottery, not authorised by Act of Parliament, and therefore illegal, the prayer of the petition falls to be refused. (2) The defender having been all along willing, and being still willing, to authorise delivery of said pony to be made to the true owner of the winning ticket, the action was unnecessary, and ought to be dismissed.

The Sheriff — Substitute ( Hallard) allowed a proof before answer, and after proof found “In point of fact, (1) That a lottery was held on 4th May last in the shop of William Miller, spirit dealer, 29 Lothian Road, in which the prize was to be a pony, referred to in the record and in the evidence as ‘Boy G;’ (2) That the present action is founded on the averment that the pursuer is proprietor by purchase of the winning ticket therein: Found in point of law, (1) That lotteries are illegal and pacta illicita, except when expressly declared legal by statute; (2) That the transaction on which the pursuer's claim is founded is not within any such statutory exception: Therefore sustained the defender's first plea-in-law; dismissed the action,” &c.

He added the following note:—“Lotteries like the present were made illegal by section 2 of 42 Geo. III. cap. 119. There have been excepting statutes, such as 9 and 10 Vict. c. 48, but it is clear that the present transaction does not come within any such exception. It is mere evasion to speak of it as a subscription sale on the Art Union principle.

“If so, the transaction, being not a sponsio ludicra, but a pactum illicitum, can take no benefit from the cases of Graham v. Pollok, on 5th February 1848, and Calder v. Stevens, 8th July 1871. There the transaction before the Court was not illegal. The Court would have refused to declare which of two or more competing horses or dogs had won a race. That would have been the enforcement of a sponsio ludicra; but there being no question as to the winner, action lay against the stakeholder, in respect of the patrimonial interest arising out

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of the undisputed fact that a certain animal had won. Here the basis of the action was a pactum illicitum, and therefore the rule applies melior est conditio possidentis.”

The pursuer appealed, and argued—The Sheriff-Substitute was wrong. The statute of 42 Geo. III. cap. 119, sec. 2, did not apply to Scotland, and even if it did the Court would entertain such an action as the present, where the defender admitted that the ticket No. 160 was the winning number in the lottery ( vide Graham v. Pollok, Feb. 5, 1848, 10 D. 646; Calder v. Stevens, July 20, 1871, 9 Macph. 1074). The Court was only called on to stop a dishonest course of action ( vide M'Allister v. Douglas, March 20, 1878, 5 R. 30).

The defender argued—The Sheriff-Substitute was right in dismissing the action. It was a rule of common law, quite apart from statute, that the Court should not be diverted from serious and important business by entertaining such cases— Foulds v. Thomson, June 10, 1857, 19 D. 803.

At advising—