Edward Bruce, Clerk to the Signet v. Walter Ross, Clerk to the Signet [1788] UKHL 3_Paton_107

UKHL
Edward Bruce, Clerk to the Signet v. Walter Ross, Clerk to the Signet
[1788] UKHL 3_Paton_107 · 1788-04-14
Whether debts incurred by wagering are good in law?—Held, that no action lay on such claims, upon the principle of sponsiones ludicræ sponsiones ludicræ .The present question arises out of an action brought for payment of £50, being a sum gained on a wager or bet, taken on the result of an impending election for the burghs of Anstruther Easter, Anstruther Wester, Kilrenny, Crail, and Pittenweem.The competing candidates for these burghs were John Anstruther, Esq. and Colonel Moncrief; and while the canvass was going on, the election of a knight of the shire of the county of Fife came on at Cupar, where the appellant attended as a freeholder. The respondent, who was agent for Colonel Moncrief, was also at Cupar on that occasion, and met the appellant there. The respondent having, in the course of conversation, boasted much that his constituent, Colonel Moncrief, would prevail and carry the burghs, and having offered, in the presence of a number of freeholders of the county, to back his opinion with a bet to any extent, the appellant took him up, and wagered £50 that Mr. Anstruther would gain the election—the respondent on his part wagering £50 that he would not, but that Colonel Moncrief would ultimately be the sitting member.The election for these burghs, when it came on, terminated in Mr. Anstruther being returned member to sit in Parliament.It appeared that the respondent knew, from calculations made, that Mr. Anstruther would gain his election, but his

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The respondent having refused to pay the £50, action was raised for payment thereof, to the competency of which, in the course of the proceedings below, no objection was stated by the respondent.Feb. 28, 1786.Mar. 10, 1786.

Of this date, the Lord Ordinary pronounced this interlocutor:—

“In respect it is admitted that at the date of the wager in question the delegates for the eastern district of the Fife burghs were chosen, and a majority of them were known to have declared for Mr. Anstruther; finds that the object of the wager could only have related to the discussion of a petition to be presented to the House of Commons, complaining of an undue return; and as it is not denied that the petition was afterwards withdrawn, in consequence of a private agreement amongst the parties; therefore, upon this ground in particular, and taking the whole circumstances of the case together, sustains the defences, assoilzies, and decerns.”
Upon a representation the Lord Ordinary, of this date, allowed a proof, which having been taken and reported, and informations ordered upon its import, the Lord Ordinary reported the whole cause to the Court. *Jan. 26, 1787.

The Lords pronounced this interlocutor:—

“Find that action does not lie in this case; therefore dismiss this action, assoilzie the defender therefrom, and decern.”
Against this the appellant preferred a reclaiming petition, but the Lords “refused the desire of the petition, and adhered to their former interlocutor.”Feb. 14, 1787.Against these interlocutors the present appeal was brought.Pleaded for the Appellant .—1. No objection was made to the competency of the action by the respondent in the proceedings below. 2. Every contract or agreement that is not unlawful, as being contra bonos mores , or as attended with public detriment, is binding and obligatory, and must

Footnote

* The proof seemed to bear on the fact of the bet having been upon the issue of a petition against Mr. Anstruther's return.

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“That no man shall play at cards or dice in any common house, town, hostelrie, or cook's houses, under the pain of forty pounds of the realm, to be exacted of the keeper of the said inns, or common houses, for the first fault, and loss of all their liberties for the next: Moreover, That it shall not be lawful to play in any other private man's house, but where the master of the family playeth himself: And if it shall happen any man to winne any sums of money at carding or dicing, attour the sum of an hundred merks, within the space of twenty-four hours, or to gain at wagers upon horse races, any sum attour the said sum of an hundreth merks, the surplus shall be consigned, within twenty-four hours thereafter, in the hands of the treasurer of the kirk, if it be at Edinburgh; or in the hands of such of the kirk-session in the country parishes as collects and distributes money for the poor of the same, to be employed always upon the poor of the parish where such winning shall happen to fall out.”
But although by this statute, playing at cards or dice, and even wagers upon horse races are restrained sub modo , yet it does in no degree affect wagers upon future contingencies,

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“Wagers likewise upon the death of princes are discharged, as giving occasion of jealousy: as also wagers concerning the event of public undertaking for the good of the country, such as the success of arms, &c. and that lest men should be tempted either to wish the armies of their native country not to prosper, or to reveal their secrets to the end they may not prosper. Vid. zipeum in Not. Juris Belli, lib. 3, in fin. There is such an act as ours, made by Lewis XIII. of France amongst his statutes, cap. 138, at seq.”
That such wagers, though they have seldom been made the subject of law suits, have been sustained in the Court of Session as good grounds of action, appears also from a decision, which is thus reported by Dirleton, 9th February

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“A pursuit was intented for a sum of money, which the defender was obliged, by his promise, to pay, in case he should be married, having gotten from the pursuer, in the meantime, a piece, which the pursuer was to lose, in case the defender should not be married. The Lords sustained the pursuit, though some of their number were of opinion that sponsiones ludicræ sponsiones ludicræ , of the nature foresaid, ought not to be allowed.”
2. The Court of Session seemed to have been misled, by supposing that the wager was laid upon the issue of a petition to be preferred to the House of Commons, and by considering it to be improper and indecent to bet upon any thing of the kind; but, although Mr. M'Millan, in his deposition, makes use of the words “ultitimately found to be the sitting member;” it is not thence to be inferred, that the question was necessarily to undergo a judicial decision, either in the House of Commons or elsewhere. In common language, it is not unusual to say, that a person is to be found so and so, because he is to be so and so. The bet between the parties depended on a point of fact, then uncertain, viz. Whether Colonel Moncrief or Mr. Anstruther would be the sitting member for a particular district of burghs? and to the determination of that bet, it was of no earthly consequence whether a petition should be presented to the House of Commons or not; or, whether such petition, after being presented, should be prosecuted or withdrawn. The respondent was indeed at pains to prove that Colonel Moncrief was started as a candidate when absent from this country, and without his knowing any thing of the matter. The respondent must therefore admit, that at the time when he laid the wager, he could not possibly know, whether Colonel Moncrief would or would not complain of Mr. Anstruther's return. But, even supposing the respondent, from his particular situation, to have known that a petition would, in all events, be presented, either in the name of Colonel Moncrief, or in the names of individual voters in that interest, still the wager did not depend upon the issue of such petition. Colonel Moncrief might die in the interim, before it could be taken into consideration, or it might be withdrawn, as in fact it was, without being brought to bearing. In either of which cases, the respondent must have lost his bet.Pleaded for the Respondent .—1. The ground upon which the appellant applied to the Lord Ordinary, complaining of his Lordship's interlocutor of the 26th February

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In regard to the two last interlocutors appealed from, they were pronounced as the unanimous judgment of the whole Court; their Lordships being decidedly of opinion, that, by the law of Scotland, no action was competent in cases of this kind. The rule and principle of the civil law, relative to sponsiones ludicræ sponsiones ludicræ , were early adopted as common law in that kingdom, and have been constantly adhered to. Thus, in the case of Sir Michael Stewart against the Earl of Dundonald, 7th February 1753, William Cochrane having, at a time when three persons were living, who preceded him in the succession to the Earldom of Dundonald, granted bond to John Stewart, on the recital of a certain sum advanced, and obliged himself to pay 100 guineas as soon as he or his heir should succeed to the said Earldom, and having, in point of fact, afterwards succeeded, the Court

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After hearing counsel, it was

Ordered and adjudged that the interlocutors of the Court below be affirmed.Counsel: For Appellant, Geo. Ferguson, W. Adam. For Respondent, Ilay Campbell, R. Dundas.