It is at this stage that the law steps in. When an agent has paid money on behalf of his principal the law gives the agent a right of indemnity. If the agent has been employed in a betting transaction, this right, says the law, arises not out of a wager but out of an implied promise by the principal to save the agent harmless from all the consequences of his performing his instructions. The principal knows that if the bet is lost the agent must pay; consequently the doctrine of an implied promise of indemnity applies equally where the transaction effected by the agent was void as being in the nature of a wager.[[281]] So eventually a transaction which, as between principals, the law would not recognise, is practically enforced by a circuitous process when effected through the medium of an agent.
But the inconsistency is seeming rather than real. The contract between the principal and the agent is not in the nature of a wager. It is more in the nature of a contract of loan. A promise by A that he will make B a present of £5 gives B no ground of action against A; it is simply void. But A employs C to go and pay the money on his behalf. C can, of course, recover what he has paid, from A. So a wager is nothing more than void, like the promise of a gift; it is not illegal. And this is the real explanation of the matter. The law does not forbid people to bet, so that in compelling the principal to indemnify his agent it is not enforcing any transaction contrary to its own policy.
Further, be it remembered, the law in its present state is not open to the charge of one-sidedness: the rights of the principal and the agent are reciprocal. The agent has the same hold over the bookmaker that the latter has over him; he could visit him with the ordinary penalties of default. But the agent who has received “winnings” on a bet, can no more refuse to account to his principal, than can a principal refuse to reimburse the agent who has paid losses. So eventually, in cases where the commission agent intervenes, fair dealing is enforced as between all parties. It is also worthy of consideration that actions in which betting transactions are involved, but which come before the Courts on a question as between principal and agent, are not open to the same objection as the actions which were allowed to be brought directly on the wager itself, and which necessitated the trial of absurd and frivolous issues. The interposition of an agent occurs, of course, almost exclusively in betting on the turf; and it may be taken that actions between principal and agent with respect to wagers will in all cases be concerned with wagers on horse-races. But in all such races there is a regularly established process for deciding as to the winner, and it is not likely that a man who was sued by a turf commission agent for reimbursements would be allowed to raise any question as to the correctness of the decision of the judge or the stewards of the race. In these cases, therefore, the time of the Courts is never taken up with disputes as to the event on which the bet was made—an inconvenience which in former times drove the judges to the extreme measure of putting all wager actions at the bottom of the cause list.
Of course it must not be forgotten that the law as settled in Read v. Anderson is yet subject to reversal by the House of Lords, a contingency which would materially affect the interests of turf commission agents; but so long as the decision of the Court of Appeal remains undisturbed, the law is that the agent who has made a bet in his own name has an irrevocable authority to pay the bet, if lost, on his principal’s behalf; and can recover the amount from him.
N.B.—Since these observations were written the Gaming Amendment Act, 1892, has, as has been pointed out above,[[282]] made some modifications in the law. The agent can no longer sue, though he can be sued.
CHAPTER III.
LOTTERIES.
A lottery has been defined to be “a distribution of prizes by lot or chance,” a definition which was accepted as correct by the Court in Taylor v. Smetten,[[283]] but which seems somewhat incomplete considering the complexity of the subject, see post p. 140 as to the tests of a lottery.
The setting up of lotteries has been declared illegal and penal by a long series of statutes commencing in the reign of William III. The full text of these statutes will be found in Chitty’s Statutes (title “Gaming”). It will be sufficient to summarise them for the purpose of the present work.
10 & 11 Wm. III., c. 17.
The Statute 10 & 11 William III., ch. 17, reciting that persons had of late fraudulently obtained great sums of money from the children and servants of merchants and traders by colour of patents or grants under the Great Seal, |Lotteries declared nuisances.| enacts by Section 1 that all such lotteries are common and public nuisances and all patents and licence for the same void.