1836. July 9th. Upon an action brought to recover a sum of money lent upon the security of an I. O. U., and upon a bill whether the money had not been lent for sums The bill stated that early in the year 1834, the plaintiff, being then resident at Paris, occasionally visited a club or gaming-house, called the Salon des Etrangers; that the defendant, L'Eaugier, was a member of the club, and superintended, and participated in the profits of the gaming; and that he was in the habit of making loans to the persons present to enable them to continue their play; that the plaintiff filed to discover had from time to time borrowed of the defendant various of money for the purpose of gaming, which had uniformly been repaid; that on one occasion, having borrowed of the defendant 2000 francs, he gave the latter his I. O. U. for the amount; that on the following day, or soon afterwards, the plaintiff repaid the 2000 francs to the defendso lent; it being ant, but omitted to take back the I. O. U.; that notwithstanding such repayment, the defendant had, upon the return of the plaintiff into this country, commenced an action upon the I. O. U. in the Court of King's Bench, for the purpose of recovering the amount of the 2000 francs and interest. The bill then prayed that the I. O. U. might be delivered up to be cancelled, and for an injunction to stay proceedings at law. the purpose of gaming:Held, that the defendant was bound to state by his answer whether it was a question ment in a court open to argu of law, whether money lent at play, or for the purposes of play, is re coverable in an action at law. The bill having interrogated whether the sums therein mentioned were not, and particularly whether the sum of 2000 francs was not, employed by the plaintiff for the purpose of gaming, and the defendant having answered equivocally upon that point, an exception was taken to his answer. Mr. Simpkinson and Mr. James for the exception. Mr. James Russell and Mr. Beavan, contrà, contended that it was not necessary for the defendant to answer the question, it being perfectly immaterial to the case made by the bill: for, admitting the transaction to be illegal in this country under the statute of Anne (a), it was not illegal at Paris. (a) 9 Ann. c. 14. The LORD CHIEF BARON.-In Robinson v. Bland (a), Lord Mansfield decided that money lent at play is recoverable in an action, notwithstanding that the security itself upon which the money is lent is void under the statute of Anne; and he accordingly held that the contract in that case, which was made in France, might be enforced here. I always respect Lord Mansfield's opinions, and received my first legal impressions from his judgments; but I have lived to see many of his decisions overruled, as in the case of assurance of enemies' property, which he held to be legal, on the notion that assurance is a beneficial traffic, and ought not to be repudiated, but which has been decided by all other judges to be illegal. I cannot therefore take it for granted that the judges would decide this case as Lord Mansfield decided Robinson v. Bland, though I own I should decide it the same way. Upon this consideration, if the party is desirous of trying the question at law, I do not think he ought to be precluded from so doing. With great reluctance, therefore, I must allow the exception. (a) 2 Burr. 1077. Exception allowed. 1936. WILKINSON v. L'EAUGIER. Nov. 22nd. The defendant by his answer stated that the Salon des Etrangers was a club established for the usual purposes of a club-house, and that games of chance with dice and cards were there carried on; that such games are recognised by the laws of France; that the defendant was an attendant at the club at a fixed salary; that the plaintiff applied to the defendant, who was in one of the refreshment rooms of the club, for the loan of 2000 francs, which the defendant lent him upon his written acknowledgment; that this sum was not lent for any particular purpose, and that the defendant did not know whether the plaintiff applied it to gaming purposes, though he might have Quære, whethe the purpose of gaming is re money lent for coverable in an action at law, and whether security within the statute 9 Anne, c. 14! 1936. WILKINSON บ. L'EAUGIER. done so. The plaintiff having obtained the common injunction, and an order nisi having been obtained to dissolve it, Mr. Simpkinson and Mr. James now shewed cause against dissolving the injunction.-There is sufficient ground of suspicion in this case to induce the Court not to dissolve the injunction. It is clear that the sum in question was lent for the purpose of gaming, which distinguishes this case from that of Robinson v. Bland. In Robinson v. Bland there was no finding by the jury that the money was lent for the purpose of play. The question therefore, whether money so lent is recoverable in an action, was not before the Court. That question, however, came before the Court of Common Pleas, in the case of Davis v. Viola (a), in which the case of Robinson v. Bland was commented upon. That was an action on the case upon promises brought for the purpose of recovering money lent at play. There were counts upon promissory notes and money counts. The plaintiff was unable to prove the defendant's signature to the notes, but called a witness to prove the amount of the money lent, as acknowledged in the notes, and five guineas besides. Under all the circumstances, the Chief Justice left it to the jury to say whether the money had been knowingly lent or advanced for the purpose of play, and, if so, he directed them to find for the defendant. The jury found a verdict for the defendant, and the counsel for the plaintiff moved for a new trial, on the ground that the contract was not within the statute of Anne, but the Court refused the application. In another case, which occurred before Mr. Justice Gould, his Lordship was of the same opinion as the Court of Common Pleas. No argument can be raised on the other side that the money having been legally lent in France may be re(a) E. T. 1784, Hill's MSS. covered in England, because it seems clear that money lent for the purpose of gaming is not recoverable in France: Code Civil, Arts. 1964, 1965. At all events, even if the Court should think the action maintainable on the money counts, the void instrument must be delivered up to be cancelled. Mr. James Russell and Mr. Beavan, contrà.-The Court can come to no conclusion upon the question of foreign law, because that is a question of fact to be determined by the Master. However, the articles which have been cited from the Code Civil, refer only to money lost and won, not to money lent at play (a). With respect to the written security, the plaintiff may have a right to have it delivered up to be cancelled, if the defendant fail at law; but if he obtains a verdict, there is no equity confessed by the answer upon which the Court will order the instrument to be delivered up. The LORD CHIEF BARON.-If I had any satisfactory evidence of what the law of France was, I should be disposed to enter fully into the question which has just been argued. But there is not sufficient in these pleadings for the Court to proceed upon; and I agree with Mr. Russell in thinking that a more distinct case ought to be raised by the bill and answer in order to determine the question in equity. As to the written instrument, I see no reason why I should now order it to be delivered up to be cancelled, for it is not precisely similar to other instruments which have been made use of in transactions of this nature. There is a difference between a bill of exchange, which is negotiable, and an I. O. U., which is only evidence of the debt. (a) The conclusion drawn from them by a learned commentator is in these words: "Le joueur qui n'a pas payé ce qu'il a perdu ne Injunction dissolved. peut être forcé à le payer; et le 1836. WILKINSON ”. L'EAUGIER. 1836. Nov. 22nd. de If, upon notice of sub- the day on which the demurrer is set LEWTHWAITE v. CLARKSON. RUTH CLARKSON, one of the defendants to this suit, had filed a demurrer for want of parties, and Robert Field and Ruth his wife, and Eliza Clarkson, three other defendants, had filed a demurrer for want of equity, and two days before these demurrers were set down to be argued on the 10th November. Briefs to argue the demurrers had likewise been delivered to the defendants' counsel on the 8th. On ment, he cannot the 9th November the plaintiff's solicitor gave notice to the defendants' clerk in court that the plaintiffs submitted to the several demurrers; and shortly afterwards a further notice was given that the plaintiff's counsel had obtained an order to amend his bill by adding parties, or otherwise as he might be advised, upon payment of 30s. costs to Ruth Clarkson, and the like costs to the other defendants. down for argu amend his bill without a special application for that purpose. Submitting to a demurrer for want of equity, puts the bill out of court, and it can only be restored under special circumstances. A motion was now made to set aside the order so obtained for irregularity, with costs, or that the plaintiff might pay the taxed costs of the demurrer. Mr. Spence, for the motion, insisted, with respect to the demurrer for want of parties, that the bill could not be amended as of course, where the demurrer had not been submitted to at least two days before the day for argument: 1 Fowl. Pr. 320: at all events, after having been set down for argument it could only be amended upon payment of taxed costs: Downes v. East India Company (a), Anon.(b). With respect to the demurrer for want of equity, he contended that the plaintiff's submission put the bill out of Court as against the two defendants who so demurred; and, therefore, that the bill must be taken to be dismissed as against them, with full costs. And for this he cited Kirkly's Orders, p. 6, where it is stated that "if the demurrer be to the whole bill, and allowed or submitted to, the defendant is to stand dismissed with costs." |