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SPORTING INTELLIGENCE., Issue 8052, 31 October 1889
A SPORTING ACTION. Considerable interest has been taken in sporting circles in the action Donne v, Mandoll recently heard at Wellington before Mr Robinson, R.M. The plaintiff, who was formerly owner of The Poet, Minerva, and other racers, claimed LBO 13s 4d as money the defendant had received as a deposit on a bet commission, for services at the Dunedin, Hawke’s Bay, and Christchurch race meetings, services performed as an expert at the Hawke’s Bay meeting, and money paid for telegrams at the same meeting. His Worship gave judgment as follows : —The first item of the cbim is the moat important. This claim is based upon section 15 of tho Gaming and Lotteries Act, 1881, which says that any money or valuable thing received by any keeper of a betting-house, which is a common gaming-house, as a deposit on any bet shall be deemed to have been received for the use of the person making the deposit, and may be recovered in any Court of competent jurisdiction. It appears that tho plaintiff made a wager with the defendant on Lochiel for the Australian Cup. Plaintiff backed the horse for L4O against L2OO, and defendant, who was paying plaintiff money, received and retained the L4O, undertaking to pay L 240 if the horse won. Lochiel did win, and defendant paid Ll4O in cash and bills, thus leaving LlOOof a balance. Tho parties had other transactions, and the defendant made a claim against the plaintiff, which tho plaintiff did not admit, and plaintiff has not recovered the LIOO balance. Plaintiff not being able to enforce any claim on the bet, now seeks to recover back the deposit. To do this it is first necessary for him to establish that the defendant was at the time of the deposit the keeper or owner of a betting-house withia the meaning of tho Gaming and Lotteries Act, 1881. In support of this, plaintiff says generally that Mandel carried on a largo betting business. He instances tho case of the bet on Lochiel as an occasion of betting at the shop, but this bet was arranged by telegram in the first instance. Another witness called has not had any betting with Mandel for twelve months. It is abundantly evident that Mandel was betting largely ; but as he was an owner of racehorses, and generally interested in racing, and was carrying on an extensive business as a tobacconist, I cannot consider that the evidence has been sufficient to establish that he was, at the time he received or retained the L4O as a deposit, “ a person keeping a shop or place for the purposes of betting, etc.” But even if I held that he was such a person, I should bo disposed to consider, on the authority of Wright v. Laing, that tho plaintiff could not recover. In that case it was held that where a person has two demands, one recognised by law and tho other arising in a matter forbidden by law, and an unappropriated payment is made, the law will afterwards appropriate it to the demand which it acknowledges, and not to tho demand which it prohibits. It has been argued that betting in itself is not illegal, but clearly the particular mode of betting hero in question is illegal, seeing that the keeper of tho house is liable to fine or imprisonment. I must hold, therefore, that the LI4O which defendant has paid included the L4O deposit. As regards the claims for turf commissions, tho evidence does not establish any contract. The plaintiff says he claims 10 per cent, on sums invested. The defendant and other witnesses speak of a practice to allow 10 per cent, of net winnings as commission to an agent, but plaintiff definitely denies that there was any agreement for a percentage of winnings. I must reject this demand. As regards services at Napier (Hawke’s Bay meeting), plaintiff claims L 3 3s a day for ten days for his set vices in telegraphing information to the defendant. Here again I fail to find evidence of any contract for payment. Donne says that he told Mandel before he went to Hawke’s Bay that he should expect to be paid, and that Mandel said he would be liberal, and that he (Donne) said he would trust to Handel s honor. After the meeting, when the dispute arose between himself and Mandel, he told Mandel that he did not propose to charge for his services, and he led both Moeller and Myers to believe that his services had been purely honorary. I' must therefore reject this item. Then remains only the item for money paid for telegrams. As regards this item, I must say that it appears to me that all telegrams on defendant’s business were made “collect.” Judgment for the defendant, with costs.
SPORTING INTELLIGENCE., Issue 8052, 31 October 1889
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