Scottish Court of Session Decisions

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Cite as: [1892] SLR 29_810, [1892] ScotLR 29_810

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Thursday June 23. 1892.

[ Lord Wellwood, Ordinary.

29 SLR 810

Knight & Company

v.

Stott.

Subject_1Horseracing
Subject_2Obligation
Subject_3Principal and Agent
Subject_4Mandate — Disbursement of Money in Bets — Pactum illicitum — Sponsio ludicra — Relevancy.
Facts:

Held that commission agents who averred that they had disbursed certain monies at a horserace meeting upon the mandate of the defender, were not barred from suing their alleged principal for recovery of these sums because they had been paid away as bets, and that the pursuers had made their averments sufficiently specific by giving, in each case, the name of the race, of the horse backed, of the amount staked, and of the person with whom the bet was made, even although in half of the cases the name given was merely “a bookmaker.”

Headnote:

In September 1891, Knight & Company, commission agents, 109 Argyle Street, Glasgow, brought an action against Captain Stott, Netherwood, Dumfries, for payment of £170, 10s., being the balance still due to them for sums disbursed upon the defender's order as lost bets at the Carlisle horserace meeting of that year.

Judgment:

Upon 3rd December 1891 the Lord Ordinary ( Wellwood) found the pursuers' averments irrelevant for want of specification, on the ground that they had failed to give with sufficient definiteness the names of the parties with whom the bets were made and the parties to whom they paid the money, and dismissed the action.

The pursuers reclaimed, and at the hearing upon the reclaiming-note moved to be allowed to amend the record. The proposed amended condescendence with relative answers contained, inter alia, the following averments—“(Cond. 4) At Carlisle racecourse on or about the 30th day of June 1891 and the 1st day of July 1891, the defender employed the pursuers as his agents to make, and if lost to pay, the following bets for him, and the pursuers did accordingly make the following bets and pay for him the following sums, viz.—

	Race.	Horse.	Sums laid.	Odds.	Persons with whom laid.
1.	Corby Stakes,	Bonnie Colleen	£4 0	5 to 4	John Schiller.
2.	Do.	Do.	4 0	5 to 4	A bookmarker.
3.	Cumberland Plate,	Alice	10 0	10 to 5	A bookmaker”
4	Do.	Do.	10 0	10 to 5	A bookmaker”

Other eighteen similar entries followed, the person with whom the bet was laid being in every case either “John Schiller” or “a bookmaker.” The defender's fourth answer was “Denied.” “(Cond. 5) The engagements Nos. 1 to 10 inclusive of the above list were made on 30th June 1891, and Nos. 11 to 22 inclusive were made on the following day. They were made by the authority and instructions and for behoof of the defender, and with his knowledge, consent, and approval. The names and addresses of the bookmakers, other than the said John Schiller, referred to in said list, are not known to the pursuers. It is the custom at race meetings for agents such as the pursuers, acting on such instructions as the defender gave the pursuers, to bet with bookmakers, although their names and addresses are unknown, and to pay in the event of the bet being lost, without the name of the payee being noted. This custom was well known to the defender, and he acquiesced in the pursuers conforming to it on his behalf, and instructed them to make and pay said bets on the footing that said custom would be followed. In each of the instances above referred to, where no name is given, the bet was made with and paid to a bookmaker whose name is unknown to the pursuers, and in doing so and acting they relied on the custom foresaid. The said John Schiller's address is No 85 Buchanan Street, Glasgow.” The defender answered—“(5) The alleged customs at race meetings are not known and not admitted; quoad ultra denied.” “(Cond. 6) With the exception of Nos. 3 and 4 in said list, the sums thus staked by the pursuers, on the defender's instructions and for his behoof, were lost and paid by them on his account. The various sums thus lost were paid by the pursuers to the defender's creditors, or the winners from the defender as his agents, and in accordance with his instructions, shortly after the running of each of the said races. The payments thus made by the pursuers, as agents and for behoof of the defender, after

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crediting the £20 applicable to Nos. 3 and 4 of the above list, which sum of £20 was paid to the pursuers on defender's account, amount to £170, 10s. A detailed statement bringing out this balance has been produced, and is here specially referred to. Said sum of £170, 10s. is due and restingowing by the defender to the pursuers.” The defender answered—“(6) Admitted that pursuers have now produced statement referred to; quoad ultra denied.” The pursuers pleaded—“(2) The pursuers having paid the sums in question as the defender's ageuts, and on his instructions and employment as such, they are entitled to decree therefor.”

The defender pleaded—“(1) No title to sue. (2) the pursuers' statements are irrelevant. (3) The pursuers' statements being unfounded in fact, and wanting in specification, the defender ought to be assoilzied, with expenses. (4) The alleged transactions are null and void, in respect that they are sponsiones ludicrae.”

The pursuers argued—(1) The record as amended was relevant. (2) The action was not barred because it arose out of a gambling transaction. It did not require the Court to determine what horses won, but whether or not the defender was due certain sums under a contract of mandate. The pursuers sought to recover certain sums disbursed by them upon the order of the defender. That sums had gone to pay bets or in speculation transactions did not prevent an agent-disburser recovering from his principal—Bell's Prin. sec. 37; Graham v. Pollok (coursing), February 5, 1848, 10 D. 646; Knight v. Cambers, 1855, 1 Eng. Jur. (N.S.) 525; Faulds v. Thomson (stockbroking), June 10, 1857, 19 D. 803; Calder v. Stevens (horseracing), July 20, 1871, 9 Macph. 1074; Thacker v. Hardy (stockbroking), December 7, 1878, 4 Q.B.D. 685; Read v. Anderson, November 16, 1882 10 Q.B.D. 100, aff. May 30, 1884, 13 QBD 779; Bridger v. Savage, 1885, 15 Q.B.D. 363 (last two cases were cases of betting upon horse races through a commission agent, and were very similar to the present); Molleson v. Noltie (stockbroking), January 24, 1889, 16 R. 350.

Argued for respondent—(1) The pursuers' averments were still irrelevant. They professed to be suing as commission agents, but there was not a word about commission. They had failed to give the names of half of the persons to whom they alleged they had paid money. It was not sufficient to say “a bookmaker”—the Court would not consider the manners and customs of the turf. (2) The alleged debt arose out of a gambling transaction, of which the Court could take no cognisance. It could not be known whether the pursuers, even supposing the mandate to have been given, were bound to pay out the sums stated without determining whether the horses backed had won or lost, and this the Court would not do— O'Connell v. Russell, November 25, 1864, 3 Macph. 89. If this was anything, it was not a mandate to disburse money, but to bet.

At advising—

Lord President—The Lord Ordinary dismissed this action on the ground of insufficient specification in the condescendence. Recognising the weakness of their record, the pursuers have tendered a minute of amendment, which gives adequate particulars, and I think we should open the record, allow the amendments of the pursuers and the relative amendments of the defender to be made, but on condition of payment by the pursuer of all expenses from the date of closing the record.

On the assumption that this is done, and the record of new closed, we have to deal with the question whether the action is not open to the objection that its subject-matter is sponsio ludicra. I think this plea ill founded.

The pursuers seek reimbursement of monies expended by them on the instructions of the defender. They say that on his instructions they engaged to pay, and did pay, certain sums to certain persons in the event which happened, of certain horses not winning at Carlisle Races. They do not ask us to try the question which horse won in the races in question; the plea would then have application. No dispute of this kind arises on the record, the averment that the horses named lost meaning that they were not declared winners.

I regard it in the same way as I should if the pursuers' case had been that on the instructions of the defender he had given a couple of sovereigns to each jockey for a winning mount, or as a consolation for losing. In this view it is no legal objection to the action that it is connected with or arises out of horseracing. Horseracing is not illegal. Nor is betting illegal in the sense of being prohibited or punishable. It is true that the Courts in Scotland do not entertain actions to determine wagers; it is also true that by the cautious provisions of the Act 1621, c. 14, which is directed against excess in wagering, kirk-sessions were given right to the surplus over 100 merks of every racing bet; and by more modern statutes it is an offence to keep a house for betting. But there is no such legal taint in betting as to infect all the contracts which are in any way related to it, and the action now before us is not open to any other objection.

I think therefore that the case must go to proof.

Lord Adam and Lord M'Laren concurred.

Lord Kinnear—I am of the same opinion. The pursuers' case is, that he was instructed by the defender to pay certain money in a certain event which occurred. The question therefore is, as your Lordship has said, not whether a particular horse won, but whether the pursuers made payment in accordance with the alleged mandate of the defender. I do not see why he should not be allowed to

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prove both the mandate and the disbursement if he can.

The Court allowed the amendments upon condition of the pursuers paying expenses, and afterwards, upon evidence being produced that the expenses had been paid, of new closed the record, and remitted to the Lord Ordinary to allow the parties a proof of their respective averments.

Counsel:

Counsel for Pursuers and Reclaimers— Dickson— Crabb Watt. Agents— Miller & Murray, S.S.C.

Counsel for Defender and Respondent— H. Johnston— Dewar. Agent— William White, S.S.C.
1892