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Universal Stock Exchange Ltd v. David Strachan

[1896] AC 166



(Judgment by: LORD HERSCHELL)

Between: The Universal Stock Exchange Limited
And: David Strachan

Court:
House of Lords

Judges:
Lord Halsbury LC
Lord Herschell
Lord MacNaghten
Lord Morris

Subject references:
Stock Exchange
Gaming and Wagering Contract
Payment of 'Differences'
Securities deposited as 'Cover'
'To abide the Event'
Action to recover deposited Securities

Legislative references:
Gaming Act 1845 - (8 & 9 Vict c109) s18

Hearing date:
Judgment date: 20 March 1896


Judgment by:
LORD HERSCHELL

My Lords, I am of the same opinion. So long as the finding of the jury that it was a gambling transaction stands, it is impossible for the defendants to object to the judgment against them which has been pronounced. They say that that finding ought not to stand; that either there ought to be a new trial because the learned judge misdirected the jury, or because the verdict was against the weight of evidence, or that the verdict ought to be entered for them because there was no evidence to go to the jury in support of the plaintiff's case. As to misdirection, I can see none. The learned judge appears to have laid down the law certainly not too favourably for the plaintiff. With regard to the verdict being against the weight of evidence, the learned judge who tried the case and the Court of Appeal have been satisfied with the verdict of the jury, and under those circumstances it would need a very overwhelming case to induce your Lordships to interfere. So far from there being any such case, the verdict is one of which in my opinion no complaint can properly be made.

My Lords, it remains to consider whether there was evidence to go to the jury. The case on behalf of the appellants is this: that when you look at the documents which contain the contract between the parties you see that these were not upon the face of them gaming contracts, but on the contrary appeared not to be gaming contracts, that there was no evidence of anything passing between the plaintiff and the defendants to the effect that the real transaction should not be such as they represented, and consequently that there was no evidence to go to the jury. I cannot accept that view. I think the character of the documents themselves coupled with the nature of the transactions entered into, the position of the parties who entered into them, and other circumstances which I need not detail, raised a question for the jury whether these were real transactions of commerce or whether they were a mere gambling for differences. I think it is impossible to say that there was no evidence to go to the jury upon the point.

My Lords, it has been said that wherever a contract is entered into between two parties containing an obligation under any circumstances to cause property to pass from one to another, whatever else there may be in the contract, and although neither of the parties contemplated that that provision should ever become operative, yet, if it ever may become operative, the contract cannot be by way of gaming and wagering. The proposition amounts to this, that parties who intended to gamble with one another, but wanted to have the security against one another of being able in a court of justice to recover their bets, could compel a court of justice to adjudicate and secure to them their bets by a judgment, if only they inserted in their contract a provision which might in certain events become operative to compel the goods to be delivered and received, although neither of them anticipated such a contingency; the purpose of inserting the provision creating an obligation being only to cloak the fact that it was a gambling transaction, and enable them to sue one another for gambling debts. The proposition contended for by the learned counsel for the appellants would really lead to that result, and I should require much consideration before I gave my assent to a proposition involving such consequences.

My Lords, I ought to observe upon one other point, though probably it was sufficiently disposed of in the course of the argument. It is said that although it may be a gambling contract, yet nevertheless the very provisions of the section against gaming and wagering prevent the plaintiff recovering the security which he deposited with the defendants inasmuch as it is an "article of value" deposited with them to "abide the event" of a wager. That seems to me not to be the case. It was deposited as security against a debt which might arise from a gambling transaction. What the defendants are really seeking is to avail themselves of that security by virtue of a void contract, and it is impossible to say that that was an "article of value" deposited with the defendants to abide the event of a wager. That was not really the nature of the transaction at all.

LORDS MACNAGHTEN and MORRIS concurred.

Case Judgement
Table of contents
  Order
  Judgment by LORD HALSBURY LC
  Judgment by LORD HERSCHELL


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