THE TOTALISATOR CASE.

Otago Witness, Issue 1848, 22 April 1887, Page 25

THE TOTALISATOR CASE.

The case of W. Stuart v. C. Roberts aud another, in which the plaintiff claims £23 which he invested in a totalisator at the D.J.C.'s last annual meeting, was resumed on the 18th. Mr Macdonald proceeded to address the court on the law points involved, and said that the first step in his argument was that in the case of Dark v. The Island Bay Racing Club (N.Z. Law Reports, September number, 1886) it had been held that betting by means of a totalisstor was a wagering contract, and that jockey clubs were stakeholders. His Worship : It is betting, but it is not illegal. Mr Macdonald said that what he urged was •that sections 46 and 47 of the Gaming and Lotteries Act only legalised it to the extent that no person using a totalisator for the purpose of betting could be convicted for using an instrument of gaming, and the instrument itself would not be forfeited. In that respect it was legalised ; but he contended that it stood in exactly the same way as any ordinary bet— that is, that man must rely on man,' according to a code of honour, but courts of law would not assist any party to recover. The policy of the court was that where a claim was made for money had and received it disassociates the bet altogether from its consideration. He then went on to refer to the case of Diggle v. Higgs (46 L.J., Q.B. 725), in which it was ruled that the deposit of a sum of money by two persons in the hands of another was a wager and not a subscription or contribution to 'a prize. Tha case of Trimble v. Hill (40 L.J., V.C. 50) cam© from New BoatfarWalea. The colonial

court took a different interpretation from the English ooart, and the latter went the length of saying that the colonies should ' follow the English court. He quoted Hampden v. Walsh (45. L.J., C.L. 243) as a direct authority for payment to the depositor' after the event. He quoted these cases for the purpose of showing' that a depositor might go to a;court either before lor after the event and recover his money after giving notice. In the case of Tollett v. Thomas (40 LJ., M.O. 209) a machine called the pan mutuel, and exactly similar to the totalisator, was held to be an instrument of gaming, and the game was a game of chance. The judge's remarks were very similar to those of Mr Justice Richmond, He had feeveral other cases, but he would wait for his learned friend to reply before he referred to them. Mr Haggitt submitted that the defendants were not stakeholders at all. The decision in Darky. The Island Bay Company was not a decision to the effect that they were stakeholders ; it was merely an illustration' of a position by Mr Justice Richmond. The decision in that case simply was that an action would not lie against the workers of a totalisator for the payment, of dividends. What Mr Justice Richmond said in regard to the worker of a totalisator being a stakeholder was nothing more nor less than a description. It might have been con in that particular case, but it would not apply w, all cases. The circumstances under which a machine may be worked might vary indefinitely. He proposed- to discuss the question under four aspects. First, he submitted that if the defendants were stakeholders, then this claim was in respect of a wagering contract, and could not be enforced by action. Second, if it could be enforced, then the transaction was legal; and even if the defendants were stakeholders, the plaintiff's deposit to stake (assuming it to be one) could not be recovered back from them after the event, he having proved to be the loser, and not' having demanded it back until after the event. His third contention would be that the worker of the machine and the jockey club were commission agents, and not stakeholders ; that the pla'ntiff gave his money to the defendants to invest on a particular horse in their- (the defendants') name, which the defendants did, and made themselves liable to pay the winner, and on the payment of his money he got a ticket which was transferable. His fourth contention was that if the defendants were not agents they were principals, aud that the money paid was paid to them for a ticket which they issued ; that they were personally interested in the money to the extent of one-tenth of the amount, and no case had ever been decided that money deposited under such circumstances was a portion. He then went on to amplify his points. He submitted that there was a clear distinction bttween the New Zealand and the English acts. The latter contained no such sections as 46 and 47, nor was there any provision in it similar to section 8 of our act, or, rather, similar to the middle paragraph, of the section. The 18th section of the English act, which corresponded to the 33rd section of our act, simply said that no action should be maintained in any court for recovering money for a wager. The decisions had held that did not prevent a person who made a bet from recovering back his money from the stakeholder before it was paid over. There was a distin ctfon, however, before the English act existed between bets that were legal and bets that were illegal, and that was the distinction he now took. He submitted that our act had clearly legalised betting upon the totalisator under the - conditions which bad been complied with in this case When the totalisator was thus used he submitted that these English decisions had no application, and that his Worship was called upon for the first time to put an interpretation upon this act. The English act made all be+s null and void, and thereby destroyed the distinction our act made. The whole of the latter had to be read together, and there was no provision in the English act similar to section 8. The middle clause of that section entirely altered the construction to be put upon section 33 in respect to the working of the totalisator upon legal occasions. If Mr Macdonald relied upon Dark v. The Island Bay Company for one purpose, he must take it as a whole ; and he would point out that it precluded this action from being brought, because if the defendants were stakeholders in this instance, they must be stakeholders in respect to a wagering contract, and Dark v. The Island Bay Company decided that no action could be brought against the workers of a totalisator when it was worked under the 46th and 47th sections. Mr Haggitt then referred to the cases of Savage v. Madex, 36 L J., Ex. 178 ; Hampden v. Walsh, 12 Qj.B. Div., 189 ; and Diggle v. Higgs, to show that even upon the English act, without the introduction of the provision which section 8 of our act introduced into it, some of the most eminent judges were of opinion that the decision that an action could be brought against a stakeholder was wrong. Referring to his' second point, Mr Haggitt submitted that the effect of sections 46 and 47 and section 8 was to legalise the contract. The compliance with these ssetions'wasadmitted, so that the wager was made legal; and when a stake was made in respect of a wager that was legal, the stake could not be recovered before or after the event, aud more especially afterwards. For that proposition he cited Beeston v. Beeston, 33 L.J., N.S., 700; Marryatt v. Brodrick, 2 M. and W. 369; and Emery v. Richards, 14, M. and W., 728. In regard to the third point, Mr Haggitt referred to the manner in which the totalisator was worked by the jockey club, and he argued that under the cir- j cumstances the club were not stakeholders, but were commission agents. The plaintiff's name did not 'appear in the transaction at all. He was merely the holder of a ticket for which he paid a certain sum. The persons with whom he betted, if he betted at all, were the persons who bet on the other horses; but the persons who bet on the other horses did not know him in the i transaction. They could not come down on him. It was a cash transaction, in point of fact, and unless the cash was paid over to them they had no recourse against anybody according to Dark v. The Island Bay Company. If they could have had recourse against anybody it must have been against the jockey club, and could not be against the plaintiff himself. Mr Haggitt here quoted the case of Read v. Anderson, 10, Q.B. Div. 100, S CM. Appeal, 13, Q.B. Div. 779, on which he relied for his fourth contention . Mr Macdonald having replied, His Worship said he would reserve his decision.