SUPREME COURT.

Nelson Evening Mail, Volume IX, Issue 152, 29 June 1874, Page 2

SUPREME COURT.

IN BANCO.

Friday, June 26.

Elliott appellant, Hamilton respon* dent. — His Honor Mr Justice Richmond delivered the following important judgment on Friday last!: —

This is an appeal from a decision of the Resident Magistrate's Court, at Ahaura. It appears that the defendant below (appellant here) drew the winning ticket, bearing the name of -'Yattcrina," in a racing sweepstakes depending upon the event of a horse raoe, run at Grey mouth, in March last. The stakes having been paid over to the appellant, the respondent claimed an equal share in them, alleging an agreement to that effect between the appellant and himself prior to the throwing for tickets. The Magistrate decided in favor of the respondent, relying, as the case states, on the 45th Section of the " Resident Magistrate's Act, 1867 " whereby the Court is enabled " to give such judgment between tho partid as it shall find to stand with equity and good conscience " If the Magistrate were justified in recmring to this power of deciding independently of the strict law of the case, it is conceded that no appeal lies. But it is contended that the transaction out of which the claim arises was unlawful,, and that in such case the. Resident Magistrate is bound to decide according to strict law. Two questions, therefore, have to bo answered. First— Was the agreement between the parties unlawful. Secondly — If so, was the Magistrate justified in overlooking the illegality, and giving judgment for the respondent, as iu good conscience entitled to the money claimed by him. The Statute 10 and 11, William in, chap. 17, reciting the mischief that had arisen from lotteries held under colour of certain patents and grants, declares and enacts, that all such

lotteries, and all other lotterlcs,,are common aud public nuisances, and imposes penalties not only on those who hold lotteries, but upon all persons who draw at them. In the ctice of Allport v Nutt. 14 Law Journal, CP. 272, cited on tho argument, it was held that racing sweepstakes are lotteries within the prohibition of this Sta ute ; and tbis decision was followed by tho Court of Queen's Bench in the ca..e of Gatty v. Field, 15 Law Journal, Q.B. 408.

According to the principle of the common law, as declaimed by the English Laws Act, 1858, the laws of England, as they existed at the date of the foundation of the colony, are in force here, so far as they are applicable to the circumstances of the colony, an t have not been altered by subsequent legislation. As regards a good deal of the Knglish legislation of the last century an 1 a half directed against the practice of gambling, it might no doubt be argued that it is litle suited to the necessities or the temper of a colonial population like our own, and that prohibitions openly disregarded and penalties never enforced would be better n moved from the Statute Book Theße reasons, however, are such as should be addressed to the legislator rather than t •> the Judge; and they apply with equal, or nearly equal, force to the mother-country and the colonies. Regarding the matter from a purely legal point of view, I can aee no reason why the Statute against lotteries, 10 and 11, William 111, chap. 17, should not extend to Nc-w Zealand. It has nothing of a local character, but forms part of the general criminal law of En j land. As such, it is just as much in force here ns any other part of English criminal law.

Then how does the statute sffect the agreement of the parties? The agreement was, that the appellant shall draw at tho lottery, an I, if successful, should share his gains with the respondent. The statute makes the drawing an offence; and the illegality of the tiansaction would plainly have prevented the appellant from recovering from the stakeholder. The cases just cited were actions against the stakeholders and are directly in point. But it may be argued, that the money having b.: .n paid to the appellant, he ought not to be allowed to set up the illegality, but should account to tho respondent for one half as money received to the use of the respondent. In Tenant v. Elliott; 1 Bosanquet and Puller, 3; money was paid, in pursuance of an illegal contract, by one of the parties to the contract, to a third person, for the use of the other party to the contract, and it was held that the money so paid waa recoverable from this third person by the person for whose use it had been paid over. Thi* decision has been approved of in other ca c es, see Nicholson « Gooch; 25 Law Journal, Q B 137; S C 5 E & B 999. But the ground of decision in Tenant v. Elliot and similar cases has been, that the action for money had and received is not founded on the illegal contract, but on the implied contract of the agent to pay over what he lias received to the person for whom he received it. The payment of the money to a third person, a stranger to the illegal contract, is a distinct transaction; giving rise to a right on the part of the person for whom the money is paid, and a corresponding duty on the part of the person to whom it is paid; wbich right and duty do not spring out of tbe prior illegality, but may be stated and enforced without any reference to it. To a similar principle is referable the decision in the case of Johnson v. Lansley, 12 Common Bench, Rep. 469. There two persons had jointly made bets with third persons on a horse race. One of them received the money, and gave to the other, for his share, a bill accepted by a third person, who was no party to the betting. It was held that tho partner to whom the bill was given was not precluded by the statute 8 and 9 Vic, c 109, sec 18, which enacts, that no suit shall be maintained for money won upon a wager, from suing the acceptor upon the b*ll. Here however, there is no right or duty to be enforced distinct from the illegal contract. In order to make out his claim in the Court below, the respondent was compelled to prove, and rely upon, the illegal contract Thus he stood in the position of ono wiih wlum another had agreed to commit an offence for their joint profit, and who was calling u,pon a Court of Justice to enfqrco a division of that profit. In my opinion he had no legal cause of action.

I have next to consider whotlr-r the Magistrate was justified, in the exercise of his jurisdiction as a court of conscience, in giving judgment for the respondent, without regard to the strict law of the case. It is

important to note tho distinction between thi-.g* illegul, in the proper sense of the wort\ and thing* merely void: Here the thing contracted to be done, namely, the drawing at lottery, is positively prohibited, and mad- an offencs; it is illegal in the full and proper sense of the word. As I have just shown, the respondent could not make his plaint without disclosing his own position as particeps criminis The Magistrate, under ■he statute of 1867, has in general (as he had under ihe Ordinance) the power to decide either According to strict law, or according to what he deems to be equity and good conscience. Apart from legal principles, no one can wonder that the Court below gave judgment as it did; for assuming the Magistrate to be right in his conclusion as to the facts, tbe conduct of the appellant is unconscientious and dishonourable. But, looking' at the question as I am bound to do, 1 hold that the Magistrate was not justified in disregarding a positive Statutory prohibition, and in placing a complainant, whom the law regards as an offender, in possession of the profit derivable from his offence. In my opinion the Ma.ictrate mistook the Jaw, either supposing that there was nothing unlawful in the sweepstakes, or that the agreement sued npon was separable from the illegality; or, if the law on these points was rightly apprehended by him, he sti 1 was wrong in law in not deciding the case upon a etrictly legal basis. For tbo power of tho Resident Magistrate's Court to decide otherwise than according to law roust be taken to be subject to ah implied proviso, that this power shall not be used to give effect to transactions prohibited by a, penal Statute. This appeal must be allowed with costs.