Cumming v Mackie
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1973 |
| Date | 28 June 1973 |
| Docket Number | No. 22. |
| Court | Court of Session (Outer House) |
OUTER HOUSE,
Lord Fraser.
ContractSponsio ludicraPurchase of chips at gaming clubAction on cheque tendered in payment.
ContractPacta illicitaCheque tendered in payment for chips purchased at gaming clubMoney advanced or lent for betting or gamingGaming Act, 1710 (9 Anne, cap. 14), sec. 1Gaming Act, 1835 (5 and 6 Will. IV, cap. 41), sec. 1.
The Gaming Act, 1710 provides by sec. 1 that " all notes, bills, bonds, judgments, mortgages or other securities or conveyances whatsoever granted or executed by any person where the whole or any part of the consideration of such shall be for the reimbursing or repaying any money knowingly lent or advanced for gaming or betting shall be utterly void, frustrate and of none effect " The Gaming Act, 1835 provides by sec. 1 that " every note, bill or mortgage which would, by virtue of [inter alia, the Gaming Act, 1710] have been absolutely void, shall be deemed and taken to have been made, drawn, accepted, given or executed for an illegal consideration "
A partner in a private gaming club raised an action of payment for chips purchased from him for use at the club's gaming tables. The defender had tendered a cheque in payment but when this was presented for payment, the defender's bank on his instructions refused to make payment. The defender pleaded that the action was incompetent in respect that it was based on a sponsio ludicra; and in respect that the cheque was drawn for an illegal consideration.
Held by the Lord Ordinary (Fraser) (1) that the purchase of chips was not part of a gaming contract or subsidiary thereto; and accordingly the action was not based on a sponsio ludicra; and (2) that money
was not lent or advanced for betting or gaming; and accordingly that the cheque was not drawn for an illegal considerationGeorge Cumming raised an action of payment against James Gordon Mackie.
The material averments of the pursuer are summarised in the following passage from the opinion of the Lord Ordinary (Fraser):"The pursuer in this action claims payment of 500 which he says is due and resting owing to him by the defender. The circumstances, as averred by the pursuer, are that he is a partner in a private gaming club in Aberdeen. He avers in Condescendence 2 as follows: In the evening on or about 21st July 1969 both the pursuer and the defender were present in the said club. The defender then purchased from the pursuer chips valued at 500 for use at the club's gaming tables. The...
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