Moon v Durden
| Jurisdiction | England & Wales |
| Judgment Date | 18 February 1848 |
| Date | 18 February 1848 |
| Court | Exchequer |
English Reports Citation: 154 E.R. 389
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 12 Jur. 138. Discussed, Atorney-General v. Marquis of Hartford, 1849, 3 Ex. 670; Pardo v. Bingham, 1869, L. R. 4 Ch. Ap. 740. Applied, In re Athlumney: Ex parte Wilson, (1898) 2 Q. B. 547; the Ydun, (1899) P. 236. Referred to, Knight v. Lee, (1893) 1 Q. B. 41; West v. Gwynne, (1911) 2 Ch. 5, 12.
MOON -o. DtTRDEN. Feb. 18, 1848.-The 18th section of the 8 & 9 Viet. e. 109, which received the royal assent on the 8th of August, 1845, enacts, that "all contracts and agreements by way of gaming or wagering shall be null atid void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event upon which any wager shall have been made : "-Held, per Parke B., Alderson, B., and Rolfe, B., (Platt, B., dissentients), that the statute had not a retrospective operation, so as to defeat an action for a wager, commenced before the statute passed.-Quaere, whether, by the first part of the section, the legislature intended to put at once an end to the legal obligation both of existing and f utiire wagering contracts, leaving the parties to all such wagers to act thereafter on them as honourable engagements alone.-The general rule in construing recent statutes is, " Nova constitutio futuris forniam imponere tlebet, non pneteritis ;" hut that rule, which is one of construction only, will yield to a sufficiently expressed intention of the legislature that the enactment should have a retrospective operation. [S. C. 12 Jur. 138. Discussed, Attorney-General v. Marquis of Hartford, 1849, 3 Ex. 670; Pardo v. liingham, 1869, L. R. 4 Ch. Ap. 740. Applied, In re Atldumney: Ex parts Wilson, [1898] 2 Q. B. 547; Tlte Ydun, [1899] P. 1236. Referred to, Knight v. Lee, [1893] 1 Q. B. 41 ; West v. Gwynne, [1911] 2 Ch. 5, 12.] Assumpsit. The declaration, which bore date the 1st of December, A.D. 1845, stated that the defendant had been summoned by virtue of a writ issued on the 12th of June, A.D. 1845. It then alleged, "that, before and at the time of the making of the agreement and promise of the defendant, a certain race for certain stakes of great 390| MOON V DURDEN 2 EX 21 value, to wit, the sura of 20001, had been i un over the Epsom race-corn se, to wit, at Epsom, and a certain horse called Running Rein, and a certain other hoise called Orlando, and also certain othei horses, had then run the said race, ovei the said race course, for the said stakes, and the said horse called Running Rein hod then reached the winning-post before the other hoises so running as afotesaid, and had beaten them, the said other horses, by speed, and after the running of the said lace, and befoie and at the time of the making of the agreement and the piomise of the defendant, a certain question and dispute then arose as to [23] whether the said Running Rein vas dulyi qualified or not for the running and for being enteied to um the lace, and as to whetjher the said Running Rein was or was not duly entitled to the said stakes, and duly qualified to be the winner thereof, and as to whethei the said Running Rein would or would not obtain the said stakes, and thereupon heretofoie, to wit, on the 22nd of May, a,d 1844, it was agreed by and between the plaintiff and the defendant, that if the said horse called Running Rein should obtain the said stakes, on account of having run the said race, the plaintiff should pay to the defendant the sum of 51 , but that if the_said horse called Running Rein should not obtain the said stakes for having run the said race, he (the defendant) should pay to the plaintiff the sum of 501 " The declaration then alleged mutual promises, and averred that " the said Running Rein never did nor has obtained the said stakes for having run the said race, but that, on the contrary thereof, the said stakes weie obtained by and given to the owner of the said other horse called Orlando " Breach, non-payment of the said sum of 501 Demurrer, and joinder Liish argued in support of the demurrer in last Michaelmas Vacation, (Dec 8) The 8 & 9 Viet c 109, s 18, enacts, "That all contiacts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and that no suat shall be hi ought or maintained in any court of law or equity foi recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made " The fiist bianch of the section is, no doubt, prospective only; but the second is retrospective If the legislature had only intended to pro hibit future wagering contiacts, it would have been sufficient to have declared them " null and void , " but the second bianch of the clause, which says that " no suit shall be brought or maintained," clearly shews that the [24] enactment was intended to have a retrospective operation The word " maintained," when used with reference to actions, means " continued " after they have been brought [Parke, B It, not the true construction this-"no action shall heieaftei be brought, or, if brought, shall be maintained'"] In that view, no effect would be guen to the latter part of the seetioji, and the legislature must have intended something more , foi it would be useless to enact that no action should be "brought" or "maintained" upon a contract already declared null and void Besides, the subsequent words aie, "fot lecovenng money or other valuable thing which shall have been deposited " If intended to apply to future transactions only, the words would have been, " which shall be deposited " Notwithstanding the geneial rule as to the piospective effect of lecent statutes, there are cases in which new enactments have been held to apply to past transactions Where a plaintiff sued, in Hilaiy Term, 1829, on a debt \vhuh acciued more than six years befoie, the Couit of Common Pleas held that the 9 Geo 4, c 14, which came mto operation on the 1st of Januaiy, 1829, precluded him fiorn lecoveiing on an oral promise to pay the debt made by the defendant in February, 1828 Tmdi i v, Chattel ton (6 Bing 258) In the judgment in that case, lefeience is made to two Nisi Jnus decisions, one befoie Hullock, B , and the other befoie Loicl Tenterden, in which those learned judges uiled that the statute applied to the case of actions brought before the 1st of January, 1829, but in which the trials did not take place until after that fame, although the effect of such a construction was to deprive the parties of their vested right to recover the debts The case of Edmonds \ Lawhy (& M & W 285), in which it was held that the 2 & J Viet c 29, s 2, was not recio-spective, is distinguishable, because the words of that statute are general, and capable of an interpretation eithei way Hete the word "maintained" has been advisedly [25] ased by the legislature for the put pose of stopping wagering suits aheady commenced Any other rnteipretation would be equivalent to striking that word out of the section [Parke, B The case of Edmoiidt, \ Lawliy is decisive in principle The Court) there held, that if a flat had issued, and assignees had been appointed befoie SEX. 26. MOON V. BURDEN' 391 the passing of the 2 & 3 Viet. c. 29, s. 2, they would have had a vested right to the property of the bankrupt from the time of the seizure; and it would he unjust to construe the act so as to defeat that right. In Nelitrop v. Sairisbrick (6 M. & VV. 684) we also held that the statute ought to he construed so as to give effect to vested rights ; and that decision was confirmed by Moore v. Phillips (7 M. & W. J5.'i6).] The object of the 8 & 9 Viet. c. 109, was to prevent parties from making courts of law instrumental in recovering wagers; and that can only be done by giving the statute a retrospective effect. Bramwell, contra. The enactment is prospective only. If the latter part of the Section be read as applying to those contracts which are annulled iti the former part, the whole is consistent. The construction will then be that all wagering contracts shall be null and void, and no action shall be brought or maintained in respect of them. To hold that the word " maintained " does not apply to all actions to which the word "brought" applies, would be to hold that the legislature has prohibited the 'ò"bringing" of an action independently of the "maintaining" of it. But no statute can prevent the "bringing," though it may the "maintaining" of an action. The true construction, therefore is, " no action shall be brought, or being brought, maintained." The first part of the section puts an end to suits between the parties to wagers; the second part relates to stakeholders, who would otherwise be liable to actions for the recovery of a thing, in specie or money, deposited with them to abide the event of wagers. If, in this case, the statute had passed after verdict, and before judgment, according to the argument on [26] the other side, it would have been illegal to enter up judgment. The 15th section repeals certain statutes relating to gaming, except as to penalties incurred before a certain day. Then the 16th section enables persons, sued for penalties, to obtain an order to discontinue, on payment of costs. But the statute contains no provision for discontinuing actions for wagers already commenced, which shews that the legislature did not intend to defeat existing rights in that respect. Where the law is altered by statute, pending an action, the law as it existed when the action was commenced must decide the rights of the parties, unless the legislature, by the language used, shew a clear...
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...the transaction is struck at by the Act involves an investigation whether the Act is retrospective. Such was the point which arose in Moon v Durden (1848) 2 Ex 22 and in Knight v Lee [1893] 1 QB 41. But if at the date of the passing of the Act the event has not happened, then the operation......
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