Scottish Court of Session Decisions

The “Act to amend the law concerning Games and Wagers” 1845 (8 and 9 Vict. c. 109) enacts that “All contracts or agreements, whether by parole or in writing, by way of gaming or wagering, shall be null and void, and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.” The provisions of the Act with reference to its enforcement, the officials by whom it is to be enforced, and the procedure to be followed in enforcing it, refer to the law and practice of England and Ireland, and the 15th section of the Act repeals in whole or in part the provisions of certain earlier Acts, including Acts of the Parliament of Ireland. The Act contains no express reference to Scotland,

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and there is no adaptation of its terms to the law and practice of Scotland.

The Gaming Act 1892 (55 Vict. c. 9), entitled “An Act to amend the Act of 8 and 9 Vict. c. 109,” enacts—sec. 1—“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 8 and 9 Vict. c. 109, 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 any connection therewith, shall be null and void, and no action shall be brought or maintained to recover any such sums of money.”

This was an action at the instance of Charles Levy, commission agent, 28 Regent Street, London, against John Jackson, writer, 83 West Regent Street, Glasgow, in which the pursuer sought to recover from the defender a sum alleged to be due by him as the balance still owing of certain advances, being sums paid by the pursuer on behalf of the defender.

In answer the defender averred—“The sum sued for consists of the alleged balances due on betting transactions between the pursuer and defender, and is in any case irrecoverable both at common law and under the Act 55 Vict. cap. 9.”

The pursuer pleaded—“(1) The pursuer having advanced the principal sum sued for on behalf of and at the request of the defender, he is entitled to reimbursement thereof as concluded for.”

The defender pleaded—“(1) The pursuer's statements are irrelevant, and insufficient to support the conclusions of the summons. (3) In any case the sum sued for is irrecoverable, in respect that it arises upon betting transactions.”

On 22nd May 1903 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor whereby he repelled the first plea-in-law for the defender and allowed the parties a proof of their averments.

Opinion.—“The defender founds on the Act 55 Vict. c. 9, as excluding the action. The pursuer replies that there is nothing in the condescendence to raise this plea; but the defender has sufficiently challenged the pursuer as to the nature of the transaction between them, and the pursuer does not deny, either on record or at the bar, that these were betting transactions. Accordingly the question comes to be whether the Act of 1892 applies to Scotland.

I decided in the case of Russell ( 1 S.L.T., No. 533) that the Act did not apply, because the Act of 1845 which it purported to amend did not apply. My judgment not having been reclaimed, I am bound (and very willing) to reconsider the question, particularly as I find that so able a judge as the late Sheriff Berry came to a different conclusion a few years later, without, however (so far as the report bears) having had his attention directed to my judgment or the grounds of it. But I remain of the opinion which I expressed in 1894, for the reasons stated in Russell's case.

One argument I ought to notice, because I do not think it was urged in Russell's case. It is said that though the old Act did no more than the common law of Scotland did, and therefore might fairly be held to be inapplicable to that part of the kingdom, the new Act goes further, and therefore ought to be held applicable. I assume that the new Act goes farther than the common law of Scotland; but the question really is, whether Parliament can be supposed to have intended the application of the amending Act to Scotland, when not only the title of it but the only enacting clause which it contains bears exclusive reference to contracts rendered null by an Act which (I now assume for the purposes of this argument) did not apply to Scotland. I answer that question in the negative. I cannot conceive an amending Act so carefully limited being intended to have a wider territorial ambit than the Act which it amends.”

The defender reclaimed, and argued—The action was excluded by statute. The Act of 1845, though it contained clauses which applied expressly to England and Ireland, was not in terms limited to those portions of the kingdom, and was therefore a general Act. It had been assumed to apply to Scotland— Foulds v. Thomson and Another, June 10, 1857, 19 D. 803. At least the amending Act of 1892 was general and applied to Scotland. (Counsel adopted the observations of Sheriff Berry in the case of M'Sorley v. Muirhead, March 30, 1897, 5 S.L.T. 7.)

Counsel for the respondent was not called upon, but stated, in reply to a question from the Bench, that the pursuer had acted as an agent in betting transactions between the defender and the person to whom the sums now sought to be recovered had been paid.