Lending money for gaming purposes.
It is only necessary to mention very shortly another offence constituted by section 4 of the same Act, viz., advancing or furnishing money for the purposes of such unlawful gaming, which is visited with the same penalty of £500. Of course the money so advanced cannot be recovered (see ante p. 16.)
Illegal partnerships.
With respect to partnership in gaming houses, it would seem to be clear on principle that one partner cannot sue another, nor can a principal sue an agent for an account of moneys won in an illegal adventure. The test adopted in Simpson v. Bloss[[338]] seems to make this clear, viz., does the plaintiff require any aid from the illegal bargain to establish his case?
In case of the partnership in a gaming house, the contract which would have to be proved contemplates the establishment of an illegal gaming house. The case of Sharpe v. Taylor[[339]] seems rather to conflict with this view. It was an action by one co-owner of a vessel against the other to recover a share of the profits earned by the vessel. The vessel was registered in the name of “A,” an American citizen, which seems to have been a breach either of the laws of the United States or of the English navigation laws, as carrying on trade between the two countries, without the real owners of the vessel being registered as such.
Lord Cottenham held that the plea of illegality of the adventure was no answer. Some of the dicta of his lordship’s judgment, pp. 817, 818, seem to countenance the view that a partner or an agent cannot set up illegality as a defence to the claim of a co-partner or principal, so long as the illegal part of the transaction is closed. Possibly, however, the decision can be supported on the ground that the object of the adventure was perfectly legal, viz., the importation of American produce in an English ship, though incidentally the provisions of the English navigation laws were not complied with.
It must be admitted that in Bridger v. Savage[[340]] the Court quoted the dicta of Lord Cottenham with approval concerning the plea of illegality, but that case cannot be considered an authority on the point, as the transaction had relation to betting, and not to any illegal contract. In Sykes v. Beadon[[341]] Jessel, M.R. refers to Lord Cottenham’s dicta with disapproval. At p. 195, “The notion that because a transaction which is illegal is closed, that therefore a Court of Equity is to interfere in dividing the proceeds of the illegal transaction, is not only opposed to principle but to authority; to authority in the well-known case of the highwaymen, where a robbery had been committed and one of the highwaymen unsuccessfully sued the other for a division of the proceeds of the robbery.” At p. 196: “It is not sufficient to say that the transaction is concluded as a reason for the interference of the Court. If that were the reason it would be lending the aid of the Court to assert the rights of the parties in carrying out and completing an illegal contract. If the contract is for the purpose of smuggling, that is an illegal contract, and the Court cannot maintain it, and the Court will not lend its aid to it at all. In my own practice a case occurred in which one of the partners in a gaming house sued the other partner for an account of profits. It did not come on for hearing, because the plaintiff thought better of it, and I am satisfied the bill could not have been maintained; still the assertion of the bill was that the gaming house had been closed, and the plaintiff asked for an account on that footing.”
The dicta of the Master of the Rolls have the support of a judgment of Lord Denman in Mortimer v. MacCallan,[[342]] where Simpson v. Bloss was quoted with approval. “This was in fact a partnership in the profits of an illegal adventure; if the plaintiff had received the whole the defendant could not have recovered his share.”
Illegality cannot be set up by third party.
At the same time a person who has received money payable under an illegal contract, not himself being a party to the contract, cannot plead the illegality. Tennant v. Elliott[[343]] and Russell v. Farmer[[344]] were both cases of this kind. This was the view taken of them by Jessel, M. R., in Sykes v. Beadon,[[345]] and by Crampton, J., in Nicholson v. Gooch.[[346]] Therefore if the partners in a gaming house kept a banking account, it is clear that the banker could be sued for the money.