BETTING AND THE LAW.
IN sporting circles, and, indeed, among the public generally, a considerable amount of interest has been excited over a judicial decision in regard to betting, given during the past week by Baron Huddleston and Mr. Justice Manisty, sitting as a Divisional Court. At first sight, people are inclined to wonder how it is that actions based upon gambling transactions which have been ex- pressly rendered void by law, can get into Court and occupy the time of the Judges. Debts incurred in betting, they argue, are not legal debts, and therefore cannot rightly be considered judicially. No doubt such a conten- tion is morally sound enough. Unfortunately, however, the manner in which Parliament in its wisdom has chosen to restrict gambling has prevented so simple a solution of the matter. It is the business of Courts of Justice to carry out the laws enacted by competent authority, but they must not enlarge or go beyond the plain intention of the Acts they enforce. The Judges cannot look behind the positive provisions of a statute, and attempt to be guided by the motives that inspired it. Their duty is to interpret what is before them, influenced only by reason, logic, common- sense, and the known and recognised principles of common law and equity. The results of such interpretation are often somewhat unexpected, especially in the case of badly drawn Acts of Parliament ; for to argue strictly--and Judges must, as a rule, argue with unbending strictness— from ill-considered and ill-drafted premisses, is by no means unlikely to lead to confusion, or even to the pro- duction of effects entirely contrary to the spirit of the original enactment. This has to a great extent been the case with the statutes affecting betting. It is true the latest decision on the subject, that mentioned above, is in support of the policy of the Act, and tends to prevent betting. On previous occasions, however, the Courts have been obliged to pronounce judgments which have distinctly assisted those engaged in the evil work of setting up what are, in fact, public gambling establishments. It may interest our readers to say something as to the more general legal aspects of the matter, especially as a close comparison of the case of "Cohen v. Kittell," heard last week before Baron Huddleston and Mr. Justice Manisty, with that of "Read v. Anderson," tried some years ago, shows that there is no real foundation for the assertion that one of them must be bad law. The main point to bear in mind in regard to betting transactions, is the fact that the statutes enacted to prevent them do not make bets and wagers illegal, but only render all such contracts "null and void." That is, if A makes a bet with B and loses, B cannot compel A to pay. As a matter of fact, however, the way in which a great deal of betting is carried on is not so simple as this. Bets are made on commission. That is, A goes to an agent, C, to whom he entrusts the business of making his bet. How does the rendering of betting contracts "null and void" by statute affect the respective rights and obligations of A and his agent, C? This is the question asked in "Read v. Anderson" and in "Cohen v. Kitten." In the first- named case, that of "Read v. Anderson," an agent employed to bet by a principal made the bet as in- structed, lost, and paid the money. The principal refused, however, to reimburse the agent, alleging in defence that the whole transaction was null and void, and that no claim based on it could be enforced. In the Court of Appeal,. however, Lord Justice Bowen and Lord Justice Fry—the Master of the Rolls dissenting—held that the action was maintainable, and that since the agent had actually paid the bet, the principal must repay him. In the more recent case of "Cohen v. Kittell," the decision at first sight seems contradictory. There, Cohen, the principal, instructed a- betting agent named Kittell to make certain bets for him. These bets Kittell impliedly agreed to make. As a matter of fact, however, he did not make them. If the bets had been really made, Cohen would have won some Accordingly, Cohen sued Kitten for that amount, pleading that he had suffered damage to that extent, owing to Kittell's breach of contract. The case, when heard in the Mayor's Court was given in favour of Cohen. On appeal,. however, before Baron Huddleston and Mr. Justice Manisty, the judgment of the Court below was reversed, and it was held that no action would lie against Kittell for breaking an agreement to make a contract which would at law be null and void, and therefore no contract at all,— the decision being based upon the general principle laid down in Story on "Agency," that an agent cannot be made liable for not making contracts unless they were such as could be enforced.
As we have said before, there is no doubt an apparent discrepancy between these two decisions. Any difficulty, however, disappears if we bear in mind the fact that betting_ is not considered by the law as something essentially or necessarily illegal. Bets are merely contracts which cannot be enforced in the Courts. A bet is not considered a transaction so flagrantly illegal or immoral that it vitiates, and destroys all other transactions that lead up to it or follow from it. Hence, the consequences that flow from the statutes against wagers have a strictly limited scope. In"Read v. Anderson," the agent who paid the bet after it was lost was held to have acted under an implied authority from his principal, an authority which became irrevocable after the making of the bet. If the agent had refused to pay the bet to the person with whom he had made it, that person could not have recovered. Since, however, the money was actually paid by the agent, he could rely for repayment upon the implied authority of his principal, just as if that authority had been given to pay money which was not, in fact, owed. That is, an agent, if authorised to pay a sum of money to a certain man, has not got to consider, "Is the money legally due,—could that man maintain an action for it ? " but merely to rely upon his authorisation. The decision in "Read v. Anderson," then, if properly understood, will be seen to do nothing to interfere with the operation of the statutes which render bets null and void, but to rest simply upon the principle of implied authorisation. In the case of "Cohen v. Kittell," it will be obvious that no such considerations apply. No money had been paid, and the action was simply brought against the agent because he had not made a contract which, the moment he had made it, would have been null and void. If in this case the bets had been made and the money paid to the agent, the principal might possibly have recovered the money out of his hands. Since, however, no actual gain.
had taken place, the principal could not claim damages because a contract had not been entered into, which, even if made, could not, except accidentally, have proved bene- ficial. Of course, it is possible to make a void contract and yet get paid. Strictly speaking, however, such pay- ment would simply be a gift. But no agent could be cast in damages because he had not secured such a gift. The cases, then, are, in reality, in no wise contradictory, and merely show that when Parliament made betting con- tracts void, it did not alter the existing relations between principal and agent. Whether this fact is to be regretted or not, is another question. For ourselves, we think it is.
Probably an amendment of the law might be made which would do a great deal to restrict and hamper the pro- fessional bookmakers in carrying on their business. The law cannot do much to prevent men gambling if they insist upon doing so ; but, at any rate, it can refuse to giver any facilities to those who make a trade of betting for the collection of their debts, and can compel such persons to act on ready-money principles, with the result of a very sensible diminution in their profits. Gambling for cash may be bad, but gambling on the ehance of being able to pay is infinitely worse.
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