Remedy of person who has given bond or note, &c.
III. It seems that a person who has given a bond, bill, or note to secure payment of a gambling debt, can bring an action in the Chancery Division to have the security delivered up to be cancelled, and also under the whole practice could obtain an injunction against suing at law to recover upon it.[[77]] But since the Judicature Act,[[78]] no proceeding in the High Court can be restrained by injunction, though probably this does not affect an injunction against suing in any other court. In some of the cases referred to, the action restrained was brought in an Irish Court; in such a case probably an injunction would lie even since the Judicature Act. In the case of the acceptor of a bill or maker of a note being compelled to pay the amount to a bonâ fide holder, |Section 2 of Act.| section 2 of the Act provides that he can recover from the drawer or payee for money “paid for and on account of the person to whom the bill was originally given upon such illegal consideration.”
In Gilpin v. Clutterbuck[[79]] the plaintiff had been compelled to pay an indorsee of a bill which he had accepted in payment of a gaming debt; and it was held that he was entitled by the statute to sue the original payee in an action of “assumpsit,” and was not bound to sue in “debt under the statute.”
The bill bore interest on the face of it. Held that plaintiff was entitled to recover the interest from the defendant as well as the principal sum. Secus if the bill does not on the face of it provide for the payment of interest.
Lynn v. Bell.
In Lynn v. Bell[[80]] the plaintiff, in payment of certain bets on horse-races, gave to the defendant three cheques on the plaintiff’s bankers, payable to bearer; two of these were indorsed by the defendant and by his indorsees to third parties, and a third was indorsed by the defendant alone in payment of a betting debt; all were eventually paid by the plaintiff’s bankers. Plaintiff sued the defendant to recover under this section the amount of the three cheques. It was urged for the defendant (1) That the cashing of the cheques by the plaintiff’s bankers was not a payment of a bill or note within the statute. (2) That he was entitled to set off the amount of a cheque drawn by one A in his favour, and indorsed by him to the plaintiff in payment of a betting debt, and for which the plaintiff had received cash at A’s bankers. Held (1) as stated above, that the term “bill” in the statute includes “cheque.” (2) That the payment by the plaintiff’s bankers of the amount of the cheques drawn by the plaintiff to the holders was in effect a payment by the plaintiff himself. “He pays when his banker pays on his account.” A cheque is a direction to pay so much money of the drawer, “actually or assumedly in the possession of the drawee.” It would be different if, in payment of a betting debt, the plaintiff had drawn a bill of exchange which was subsequently paid by the acceptor, as “it is not necessary nor usual that there should be money of the drawers in the hands of the drawee of a bill of exchange.” The language of this part of the judgment would seem to leave it an open question, if the drawer of the cheque had at the time no assets at the bank; or in the case of a bill of exchange being given instead of a cheque, if the acceptor recovered the amount from the drawer, whether this would not amount to a “payment” by the drawer within the section. (3) As to the set-off, the same reasoning was applied. The amount of the cheque was not paid by the defendant or his bankers, but by A’s bankers, consequently it could not have been recovered in an action by the defendant under this section, and could not be made the subject of a set-off. |What instruments are within the statute.| As to the instruments that are within the statute in the above case of Hawker v. Hallewell[[81]] the Vice-Chancellor seemed clearly of opinion that bonds were within the equity of the statute. In the above case of Lynn v. Bell[[82]] it was held that “bills” in the statute included “cheques.” In the judgment are to be found some instructive observations as to the similarities and differences between cheques and ordinary bills of exchange. In Parsons v. Alexander[[83]] the plaintiff sued on a cheque and also on an I O U, both given for a gaming debt; as the cheque was unstamped the plaintiff relied on the I O U. But as an I O U is not an instrument or security for a debt, but only evidence of it, it was treated as void under 8 & 9 Vict., c. 108, and not as illegal under 5 & 6 William IV., c. 41. See, too, Quarrier v. Coulston[[84]].
PART III.
8 & 9 Vict., c. 109.
Such was the state of the law at the commencement of the present reign, until it was attempted to deal with wagers by a broad and general enactment, which, however, left the provisions of the Act of William IV. untouched.
The Statute 8 & 9 Vict., c. 109, s. 18 provides “that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void, and no suit shall be brought or maintained[[85]] in any court of law or equity to recover any sum of money or valuable thing alleged to be won upon any wager or which should have been deposited in the hands of any person to abide the event on which any wager should have been made. Provided that this enactment shall not be deemed to apply to any subscription, contribution, or agreement to subscribe or contribute for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport or pastime.”