Universal Stock Exchange Ltd v. David Strachan
 AC 166
(Judgment by: LORD HALSBURY LC)
Between: The Universal Stock Exchange Limited
And: David Strachan
House of Lords
Lord Halsbury LC
Gaming and Wagering Contract
Payment of 'Differences'
Securities deposited as 'Cover'
'To abide the Event'
Action to recover deposited Securities
Gaming Act 1845 - (8
9 Vict c109) s18
Judgment date: 20 March 1896
LORD HALSBURY LC
My Lords, this case comes before your Lordships under circumstances which render it unnecessary to deal with it very elaborately or as if it established any very important principle of law. The question of law intended to be argued originally was whether Cave J. misdirected the jury. [His Lordship read the first part of the summing up set out above.] I am wholly unable to understand, after that direction to the jury, what possible misdirection could have been suggested. That was a most accurate direction to the jury of what they were to find upon the facts before them; and although there is a direction at the close of his summing-up to the jury, which I think it is possible might have been objected to on the other side as being too favourable to the defendants, yet, so far as the defendants are concerned, it appears to me that it is impossible to say that the learned judge did not put before the jury the true question which they had to determine.
Therefore, my Lords, the case resolves itself into an entirely different question, the only question of law I need refer to - namely, whether or not there was any evidence to go to the jury. I cannot doubt that there was a very considerable amount of evidence to go to the jury, and I agree with the Courts below in saying that one does not adequately discuss that question by taking each part of the case by itself and dissecting the case, and disposing of this or that piece of the evidence as if it were to be looked at alone. The whole transaction has to be looked at, and the whole nature of this institution, whatever it is. Speaking now upon the evidence before us, it appears to me as if it were a concern expressly designed for the purpose of enabling people to gamble in such a way as to evade the provisions of the law. It may or may not be that - it is not necessary to decide whether it is or not - it is not before us at the moment; but I am saying now, as justifying the finding of the jury, that that is what it seems to me to be, looking at the whole nature of the agreement. When I say the agreement I mean the "terms of business" which they call upon a customer to sign, which are to constitute the contractual relations between the parties. I will not rely too much upon the circumstances of suspicion in it, namely, that they say that it is not to be a gambling transaction, but that it is to be a real bonâ fide transaction. When I look at the terms themselves the whole scheme appears to me to be intended with great ingenuity to pretend that there is to be a real transaction, and yet there is to be a payment in respect of the relations between the parties which is only reconcilable in my mind with its being an unreal transaction. They are to get 5 per cent. Each of the learned counsel in turn has been asked what that was for, inasmuch as it was admitted there was no purchase and no sale. In all these transactions not one single purchase or sale is proved to have existed during the whole period in which this business was going on. Then if the real meaning of the parties is this, that there is to be only a payment of differences, what is it but a gaming and wagering transaction between the two as to what shall be the payment on the one side or on the other side? My Lords, if I were on the jury I should come to that conclusion; but I am not under the necessity of trying this question as if I were upon the jury, because the jury have found that it was a gambling transaction, and upon evidence which seems to me extremely satisfactory.
The only question for your Lordships is whether there was evidence to go to the jury, because under the circumstances of this case it would be idle to contend that if there was evidence to go to the jury this is a case in which your Lordships would say that the case should be tried again by another jury. I am satisfied, as far as I am concerned, that the jury were right, and that there was ample evidence to go to them which would justify them in the conclusion at which they arrived.
I therefore move your Lordships that the appeal be dismissed with costs.