Scottish Court of Session Decisions

Subject_1 PACTUM ILLICITUM.
Subject_2 SECT. XI.

Sponsiones ludicræ. - Game Debt. - Premium for procuring a Wife. - Private Lotteries.

John M'Coull, Shoemaker in Edinburgh,
v.
Alexander Braidwood, Shoemaker there

Date: 5 March 1767
Case No. No 63.

A bill for L.8, a part of which sum had been won at play, was found null.

Click here to view a pdf copy of this documet : PDF Copy

M'Coull having charged Braidwood for payment of a bill of L. 8 Sterling, Braidwood suspended on this ground, That the bill was granted for money won at play, and therefore null by the said statute. M'Coull, in a condescendence, averred, that the greatest part of it was for furnishings of different kinds, but acknowledged, that having kept a sort of public house, between 30s. and 40s. of it was for liquor, won by him at draughts from the suspender, during the course of 18 months, and at many sittings.

The Lord Gardenstone Ordinary, upon advising this condescendence, “sustained the reason of suspension, founded on the act of Queen Anne, That the bill charged on was in part granted for a game-debt; found the said bill void, and suspended the letters simpliciter, without prejudice of any action at the charger's instance, for payment of any furnishings, or advances by him, separate from the game-debt, as accords.”

The suspender reclaimed, and contended, That the act was not meant to restrain from play for amusement, and for trifles. It is entitled, “An act against excessive and deceitful gaming.” What is excessive gaming, is no where expressly said in the act, but may be collected from that clause which allows recovering of any sum above L. 10 lost at one sitting. This seems a key to the spirit of the whole statute, and particularly to warrant a correspondent limitation of the general clause, respecting securities, founded on by the suspender.

2do, It is submitted, whether the present case does at all fall under the act. In the common case there is no value given for money lost at play. But here the suspender got liquor, and as the charger lost fully as much as he, the sum charged for was really no more than the suspender's club, which he ought at any rate to pay.

3tio, The bill ought at least to be sustained to the amount of the advances and furnishings made by the charger.

Answered to the first; The statute only allows recovery where the sum amounts to L. 10, yet it has declared all securities void, whatever sum they may be granted for; and there are very solid grounds for the distinction.

The law allows to play for any sum under L. 10. provided it be paid in ready money, presuming that those who are possessed of so much cash cannot suffer by losing that sum. But, if securities were allowed for any sum at all, they might be multiplied without end, which would be very dangerous, especially to the lower class of people.

To the second; The statute voids all securities, granted either for money, or other valuable thing won by gaming; nor is there any real difference whether this bill was granted for money lost at play, or the price of liquor lost at play.

To the third; The statute declares the security null, where either the whole, or any part of the consideration of such securities, is for money won at play, and sufficient justice is done the suspender, by the reservation in the Lord Ordinary's interlocutor.

“The Lords adhered.”

For the Charger, Wight. For the Suspender, Armstrong. Fol. Dic. v. 4. p. 34. Fac. Col. No 61. p. 105.