[COURT OF APPEAL]

MORGAN v. ASHCROFT.

Gaming - Bets - Claim for repayment of bets overpaid - Money had and receive - Money paid through mistake of fact - Necessity for the taking of account - Gaming Act, 1845 (8 & 9 Vict. c. 109), s. 18 - Gaming Act, 1892 (55 Vict. c. 9), s. 1.

The defendant was in the habit of making bets with the plaintiff, a bookmaker. The plaintiff claimed that through a mistake on the part of his clerk in making out the account the defendant was overpaid to the extent of 24l. 2s. 1d. and he sued the defendant to recover that amount. The defendant counterclaimed for a balance of 9l. 13s. 4d. alleged to be due to him. The county court judge found that 24l. 2s. 1d. had been overpaid under a mistake of fact and he entered judgment for the plaintiff. On appeal:-

Held, first, that the dispute between the parties was a dispute between a backer and a bookmaker as to the nature of the account between them; and that in order to ascertain whether or not an overpayment had been made it would be necessary for the Court to examine the state of the account between the parties. But the Court was not entitled to do that by reason of the Gaming Act, 1845, as by merely taking the account the Court would be recognizing wagering transactions as producing legal obligations. The plaintiff's claim therefore failed.

Secondly, the plaintiff's claim was for money had and received based upon a mistake of fact, but in order to entitle a person to recover back money paid under a mistake of fact, the mistake must be as to a fundamental fact. In making the payment the plaintiff was under a mistake as to the nature of the transaction; he thought that a wagering debt was due from himself to the defendant, whereas, on the facts as found by the county court judge, it was not. But if the supposed fact had been true the plaintiff would have been under no liability to make the payment, which was only in law a voluntary payment, and on this ground also the plaintiff's claim failed.

Principles laid down by Bramwell B. in Aiken v. Short (1856) 1 H. & N. 210, 215 discussed and applied.

Dictum of Channell J. in Gasson v. Cole (1910) 26 Times L. R. 468, 469, dissented from.

APPEAL from a decision of Judge L. C. Thomas sitting at the Abergavenny County Court.

The plaintiff was a bookmaker and he claimed to recover from the defendant, a licensed victualler, who had been in the habit of making bets with him, a sum of 24l. 2s. 1d., being the amount of an alleged overpayment made by the plaintiff to the defendant in settling bets.

The claim arose in the following circumstances: According to the plaintiff's case the defendant won from the plaintiff on balance a sum of 24l. 2s. 1d. in respect of bets made by the defendant with the plaintiff on June 4, 1936, and this amount was credited to him for that day's transactions. On June 5 the defendant made further bets with the plaintiff, as the result of which, according to the plaintiff's case, the defendant lost 23l. and won 21l. 13s. 9d., leaving him a loser on balance of 1l. 6s. 3d. By a mistake on the part of the plaintiff's clerk in making out the account, the sum of 24l. 2s. 1d. was carried forward into the account for June 5, with the result that this account showed the defendant to be a winner to the extent of 22l. 15s. 10d. instead of showing him (as it ought to have done) to be a loser to the extent of 1l. 6s. 3d. This sum of 22l. 15s. 10d. together with the sum of 24l. 2s. 1d., making together 46l. 17s. 11d., was paid to the defendant by the plaintiff's clerk, with the result that upon the account put forward by the plaintiff the defendant had been overpaid to the extent of 24l. 2s. 1d., the sum which the plaintiff sought to recover in this action.

The defendant made a counterclaim in which he alleged that he had made other bets with the plaintiff not shown in the plaintiff's accounts, as a result of which the plaintiff owed him 9l. 13s. 4d. after taking into account the sum of 46l. 17s. 11d. paid to him by the plaintiff.

The county court judge found as a fact that the defendant had been overpaid to the extent of 24l. 2s. 1d., and that the overpayment was made under a mistake of fact - namely, the mistake of the plaintiff's clerk in not noticing that the 24l. 2s. 1d. due on the first day's transactions had been credited twice, and he gave judgment for the plaintiff for that amount. He found as a fact that the defendant did not make the additional bets alleged in the counterclaim, with the result that the counterclaim failed.

The defendant appealed.

R. G. Micklethwait for the defendant, appellant. The county court judge was wrong in giving judgment for the

plaintiff on his claim, and in dismissing the defendant's counterclaim. There was no evidence to support the county court judge's finding of fact that the defendant had been overpaid by the plaintiff. On the facts there was a balance owing to the defendant of 9l. 13s. 4d.; and, therefore, the defendant is entitled to judgment on the plaintiff's claim, and also to judgment on the counterclaim for that balance.

Even assuming, however, that the county court judge's findings of fact are right, the plaintiff is not entitled to recover on his claim.

First, the plaintiff is not entitled to recover the sum claimed on the ground that it was paid under a mistake of fact. The action to recover money had and received by a defendant on the ground that it was paid under a mistake of fact is not now so wide in its scope as it formerly was. The view previously taken of this form of action appears from the case of Sadler v. Evans (1), where Lord Mansfield observed: "It is a liberal action, founded upon large principles of equity, where the defendant cannot conscientiously hold the money. The defence is any equity that will rebut the action." It would seem to have been on that principle that it was held in Kelly v. Solari (2) that money paid under a bona fide forgetfulness of facts which disentitled the defendant to receive it might be recovered back. Parke B. there said(3) that "where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it is against conscience to retain it." That view has not, however, been approved in more recent cases. Thus in Sinclair v. Brougham (4), where Lord Sumner observed: "There is now no ground left for suggesting as a recognizable 'equity' the right to recover money in personam merely because it would be the right

(1) (1766) 4 Burr. 1984, 1986.

(2) (1841) 9 M. & W. 54.

(3) 9 M. & W. 58.

(4) [1914] A. C. 398, 456.

and fair thing that it should be refunded to the payer"; and it has been severely criticized in Holt v. Markham (1), where it was held that in the circumstances of that case the plaintiffs could not recover from the defendant the money which they claimed as having been paid under a mistake of fact. Scrutton L.J. there observed(2) that ever since Sadler v. Evans (3) was decided "the whole history of this particular form of action has been what I may call a history of well-meaning sloppiness of thought." In Aiken v. Short (4) money paid by bankers under a mistake of fact was held to be irrecoverable in the circumstances of that case. Bramwell B. there laid it down(5) that: "In order to entitle a person to recover back money paid under a mistake of fact, the mistake must be as to a fact which, if true, would make the person paying liable to pay the money; not where, if true, it would merely make it desirable that he should pay the money." In the present case the plaintiff knew that the payment which he made was in respect of bets, and that he was under no legal liability to make it. In In re The Bodega Co. (6), where it was held that a company was entitled to recover back fees paid to a person under the mistake of fact that he was a director of the company, Farwell J., referring to that observation of Bramwell B., said(7): "That, I apprehend, means this. If you are claiming to have money repaid on the ground of mistake, you must show the mistake is one which led you to suppose you were legally liable to pay." That rule was also recognized in Maskell v. Horner (8), where it was held that the plaintiff could not recover the amount of tolls which had been unlawfully demanded from him as money paid under a mistake of fact, inasmuch as he had paid the tolls, not because he was under the mistaken belief that he was legally liable, but because he did not wish to be sued for them. In In re Thellusson (9), where a creditor lent money to a debtor without either of them knowing that a

(1) [1923] 1 K. B. 504.

(2) Ibid. 513.

(3) 4 Burr. 1984.

(4) (1856) 1 H. & N. 210; 25 L. J. (Ex.) 321.

(5) 1 H. & N. 215.

(6) [1904] 1 Ch. 276.

(7) Ibid. 286.

(8) [1915] 3 K. B. 106.

(9) [1919] 2 K. B. 735.

receiving order had been made against the debtor, it was held by the Court of Appeal that the creditor could recover the money from the official receiver because it would not be right, in view of his official position, that the latter should keep it; but it would seem that in that case it was only because of the official position of the person receiving the money that it was held to be recoverable. In Jones (R. E.), Ld. v. Waring & Gillow, Ld. (1), it was held by the Court of Appeal that the plaintiffs, who had paid money to the defendants under a mistaken view of the facts which had been presented to them by a third party, could not recover it back, and although that decision was reversed in the House of Lords(2) it was only by a majority of three Lords as against two, the majority apparently relying upon the dictum of Parke B. in Kelly v. Solari. (3) In Home and Colonial Insurance Co. v. London Guarantee and Accident Co. (4), where the liquidator of an insurance company had paid claims under contracts in respect of which stamped policies had not been issued (the liquidator being ignorant both of the fact that no stamped policies had been issued and of the law that required such policies), it was held that the money so paid could not be recovered back as money paid under a mistake. In Steam Saw Mills Co. v. Baring Brothers & Co. (5), where under a contract the plaintiffs paid money to the defendants as agents for a foreign Government in ignorance of the fact that since the contract had been entered into there had been a change of Government in that country, it was held that they could not recover the money as having been paid under a mistake of fact, since the fact of which they were ignorant was not one which, if they had known it, would necessarily have discharged them from liability. In Kerrison v. Glyn, Mills, Currie & Co. (6), where it was held that money paid to a banker under a mistake of fact could be recovered, the decision of the House of Lords would appear to have been based on the conclusion in law reached by the trial judge on the facts found by him. The cases show that in

(1) [1925] 2 K. B. 612.

(2) [1926] A. C. 670.

(3) 9 M. & W. 54, 58.

(4) (1928) 45 Times L. R. 134.

(5) [1922] 1 Ch. 244.

(6) (1911) 17 Com. Cas. 41.

order that money paid may be recovered back on the ground that it was paid under a mistake of fact, the money must have been paid on the supposition that it was legally payable and not merely on the supposition that it was morally payable. In the present case the plaintiff cannot have supposed that the sum which he paid and which he seeks to recover was legally payable. The plaintiff paid the whole sum of 46l. 17s. 11d. to the defendant on the supposition that it was payable in respect of gaming debts and he at that time intended that the whole sum should be applied in payment of such debts. In order to show that in paying that sum to the defendant he was making the mistake of fact of overpaying him by 24l. 2s. 1d. he sought to prove that the latter sum was payable by the defendant to the plaintiff in respect of gaming debts. Thus in order to arrive at the amount of his claim the plaintiff had to rely entirely on gaming debts, and as gaming contracts are void in law, the sum which the plaintiff claims was paid not under a mistake as to his legal but only as to his moral liability, and therefore he cannot recover it as having been paid under a mistake of fact. In Gasson v. Cole (1) Channell J., in reference to money paid under a mistake of fact in respect of a betting transaction, no doubt said that "if it was a clear mistake of fact, he thought that the person would be entitled to recover the money back"; but it is submitted that that dictum is incorrect in law and that the county court judge should not have relied upon it.

Secondly, the plaintiff is prevented from recovering the sum which he claims by the Gaming Acts, 1845 and 1892. That sum is a balance which the plaintiff alleges is due to him on an account between him and the defendant. In order to prove that that balance is due, the plaintiff must prove the debts on both sides of the account. But these debts were all due on gaming contracts which are null and void under the Acts, and the alleged balance therefore is also null and void. In Butts v. Ellred (2) it was held that an agent was not entitled to recover the balance of a betting account by reason

(1) (1910) 26 Times L. R. 468, 469.

(2) (1896) 12 Times L. R. 624.

of the Gaming Act, 1892. The last point decided in Shoolbred v. Roberts (1) would seem, however, to be somewhat opposed to this contention of the defendant.

It is true that the defendant, though he relies on the Gaming Acts as a statutory defence, did not expressly plead these Acts in his defence pursuant to the County Court Rules, 1903 to 1934, Order x., r. 18, sub-r. 1; but it was not necessary for him to do so, because sub-r. 2 of that rule provides that "nothing in this rule shall entitle a plaintiff to maintain an action contrary to the provisions of the Gaming Acts, 1845 or 1892, by reason of those Acts not having been pleaded as a defence." Moreover, it appears from the authorities that even though these Acts have not been pleaded, the judge must himself take judicial notice of them and give effect to them: see Luckett v. Wood. (2)

Carey Evans for the plaintiff, respondent. The county court judge rightly held that the plaintiff had been overpaid to the extent of 24l. 2s. 1d.; that that overpayment was made under a mistake of fact and might be recovered back; and that the defendant did not make the additional bets mentioned in the counterclaim; and he accordingly rightly gave judgment for the plaintiff on the claim and dismissed the defendant's counterclaim.

The plaintiff is entitled to recover the sum claimed from the defendant as money paid by him to the latter under a mistake of fact. That sum was paid through a mere error in calculation by virtue of which the defendant received from the plaintiff a sum that had already been paid to him. It plainly appears on the face of the account between the parties that the defendant was being overpaid by the amount of the plaintiff's claim.

The sum in question was paid by the plaintiff in the mistaken belief that it was legally due and not merely in the belief that it was only morally due. It was not in any sense a gaming debt. The account by reference to which it appears that this sum was an excess payment was an ordinary money account which did not show any bets. It is true that the sum

(1) [1899] 2 Q. B. 560.

(2) (1908) 24 Times L. R. 617.

has been referred to as a balance of the account between the parties, but it was proved in the county court that it was a sum which was not included in that account.

This was a payment voluntarily made by the plaintiff to the defendant in ignorance of the fact that the sum had already been paid. It has never been decided that a voluntary payment made by mistake in respect of a debt already paid cannot be recovered back.

The general principle applicable to this case is that which was laid down by Lord Mansfield in Moses v. Macferlan (1) in these words: "This kind of equitable action, to recover back money, which ought not in justice to be kept, is very beneficial, and therefore much encouraged. It lies only for money which, ex aequo et bono, the defendant ought to refund: it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law; as in payment of a debt barred by the Statute of Limitations, or contracted during his infancy, or to the extent of principal and legal interest upon an usurious contract, or, for money fairly lost at play: because in all these cases, the defendant may retain it with a safe conscience, though by positive law he was barred from recovering. But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition. ...."

Aiken v. Short (2), where Bramwell B. held that in order to entitle a person to recover money paid under a mistake of fact, the mistake must be as to a fact which, if true, would make him liable to pay and not merely make it desirable that he should pay, and the subsequent cases, such as Maskell v. Horner (3), which proceeded on that principle, have no bearing on the present case. In this case, by a mere arithmetical error the plaintiff paid to the defendant a sum to which the latter had no claim. Further, at the time when the plaintiff made the payment he believed that he was paying

(1) (1760) 2 Burr. 1005, 1012.

(2) 1 H. & N. 210, 215.

(3) [1915] 3 K. B. 106.

a debt which was justly due from him, and it cannot be supposed that in doing that he was getting any benefit by making the payment. Moreover, at the time when the money was paid an account was given to the defendant which made it plain that the money was being paid twice over. Aiken v. Short (1) is distinguishable from the present case, and the dictum of Bramwell B. is not binding upon this Court and ought not to be followed. Bramwell B., according to the report in Hurlstone & Norman(2), laid down a general rule which is often referred to. But according to the fuller report of the case in the Law Journal, after laying down the general rule, he goes on to say(3): "I do not know whether that is a sufficiently comprehensive principle, but it is one which has existed throughout in my mind." He there expressed a doubt whether the principle that he was laying down would comprehend all cases. Bramwell B. then proceeded to give his reasons for laying down that general rule. He had in mind a case where persons thought fit for their own benefit to pay money to the defendant. When a payment is made not for the benefit of the payer, but in order to avoid a detriment which would occur to the payer if the facts were as he supposed them to be, the payment would fall within the dictum of Bramwell B., provided there was a threat which was made in order to compel the payer to pay. In the present case there was no threat; the payment was a purely voluntary payment and therefore it does not come within the dictum of Bramwell B. in Aiken v. Short. (4) In R. E. Jones, Ld. v. Waring & Gillow, Ld. (5), Lord Sumner said: "In the case of payments of money, however, the notion is common that, if some one pays me money when he need not do so, it is my windfall, for I am not bound to keep his accounts for him. This is where the fallacy comes in. I may not be bound to know the payer's accounts but I ought to know my own." The receiver of money which is not due cannot retain the money, when he probably knew

(1) 1 H. & N. 210; 25 L. J. (Ex.) 321.

(2) 1 H. & N. 215.

(3) 25 L. J. (Ex.) 324.

(4) 1 H. & N. 215; 25 L. J. (Ex.) 324.

(5) [1926] A. C. 670, 696.

and certainly ought to have known that it was not due. In Sinclair v. Brougham (1) Lord Dunedin contrasted the difference between the case of a chattel delivered by mistake and the case of payment of money made under the mistaken impression that a debt was due when in truth there was no debt due. The same idea was developed in Norwich Union Fire Insurance Society v. Wm. H. Price, Ld. (2), where Lord Wright said(3): "The facts which were misconceived were those which were essential to liability and were of such a nature that on well-established principles any agreement concluded under such a mistake was void in law, so that any payment made under such mistake was recoverable. The mistake, being of the character that it was, prevented there being that intention which the common law regards as essential to the making of an agreement or the transfer of money or property." It is clear from the other judgments in Aiken v. Short (4) that that case was decided in the way it was decided not because it was a voluntary payment but because the debt was due. That case is no authority in a case like the present case where the person who receives the money knows that he is not entitled to receive it and that the person making the payment has no intention of making him a present. Hamilton L.J. said in Baylis v. Bishop of London (5): "I think that in citing dicta so largely expressed it is well to remember a saying of Sir James Mansfield in Brisbane v. Dacres (6): 'It certainly is very hard upon a judge, if a rule which he generally lays down is to be taken up, and carried to its full extent. This is sometimes done by counsel, who have nothing else to rely on; but great caution ought to be used by the Court in extending such maxims to cases which the judge who uttered them never had in contemplation.'" When Bramwell B. expressed the dictum in Aiken v. Short (7), which is relied upon by the appellant, he did not have in his mind such a case as the present one. That dictum ought not to be followed in the present case. It was

(1) [1914] A. C. 398, 431.

(2) [1934] A. C. 455.

(3) Ibid. 461.

(4) 1 H. & N. 210.

(5) [1913] 1 Ch. 127, 138.

(6) (1813) 5 Taunt. 143, 162.

(7) 1 H. & N. 215.

entirely obiter and not necessary for the decision of that case, and was not concurred in by the other judges in that case. If pressed to its full extent it would result in a manifest injustice. It is not supported by the subsequent decisions. It has been accepted as a statement of the law without any discussion as to whether or not it is correct: see In re The Bodega Co. (1); Maskell v. Horner. (2) The decision of the House of Lords in Kerrison v. Glyn, Mills, Currie & Co. (3) could not be supported if the dictum of Bramwell B. applied. The dictum of Channell J. in Gasson v. Cole (4) that a person who paid money under a mistake of fact in a betting transaction was entitled to recover the money back is directly in point in the present case and ought to be followed.

Micklethwait in reply. The proposition enunciated by Bramwell B. is set out in the text of Kerr on Fraud and Mistake, 6th ed., at p. 636, and Aiken v. Short (5) and In re Bodega Co., Ld. (1) are cited as authorities for the proposition. The dictum of Bramwell B. was applied and followed in Leedon v. Skinner. (6) It is also stated in Kerr on Fraud and Mistake, at p. 215, that "voluntary gifts and subscriptions to charities fall within the same principle, and cannot be set aside or recovered except on the ground of fraud or mistake induced by the donee." The defendant did not tell the plaintiff that so much money was owing to him and so induce the plaintiff to act to his detriment. It is true that this was not a payment made under a legal liability inasmuch as it was paid in respect of a gaming debt, nevertheless it was not a voluntary payment as it was not made under an illegal contract; it was made to avoid a detriment which might have happened if the bookmaker took a certain course. There is an implied recognition by the Privy Council in Norwich Union Fire Insurance Society v. Wm. H. Price, Ld. (7), that the rule is as stated by Bramwell B. in Aiken v. Short. (5) The consideration here was payment of a gaming account. The appeal ought to succeed, because the county

(1) [1904] 1 Ch. 276.

(2) [1915] 3 K. B. 106.

(3) 17 Com. Cas. 41.

(4) 26 Times L. R. 468, 469.

(5) 1 H. & N. 215.

(6) [1923] Vict. L. R. 401.

(7) [1934] A. C. 455.

court judge has taken an account of gambling transactions contrary to the provisions of the Gaming Act, 1845.

1937. May 11. The following judgments were read:-

SIR WILFRID GREENE M.R. This appeal raises some novel points. The plaintiff is a bookmaker and he claims to recover from the defendant, a licensed victualler who had been in the habit of making bets with him, a sum of 24l. 2s. 1d., being the amount of an alleged overpayment made by the plaintiff to the defendant in settling bets.

The claim arises in the following circumstances. [His Lordship stated the facts set out above and continued:] The learned county court judge found as a fact that the defendant had been overpaid to the extent of 24l. 2s. 1d. and that the overpayment was made under a mistake of fact - namely, the mistake of the plaintiff's clerk in not noticing that the 24l. 2s. 1d. due on the first day's transactions had been credited twice, and he gave judgment for the plaintiff for this amount. He entertained doubts as to the maintainability of the counterclaim, but he found as a fact that the defendant did not make the additional bets in question, with the result that the counterclaim in any event failed. The decision of the learned county court judge on the counterclaim being, as it was, a pure decision on fact, was not and could not have been challenged before us, and the only question which falls for decision is whether or not the learned county court judge was right in holding that the plaintiff is entitled to recover the 24l. 2s. 1d. which upon the account must be taken to have been an unintentional overpayment. But although the counterclaim was dismissed, the fact that it was made - and there is nothing to suggest that it was not made bona fide - does, I think, throw a light upon the essential character of the claim. In substance the dispute between the parties is a dispute between a backer and a bookmaker as to the state of the account between them. The fact that the defendant's cross-claim is raised by way of counterclaim and not by way

of set-off does not, in my view, affect the substantial point that in order to ascertain whether or not an overpayment had been made which the plaintiff was entitled to recover it was necessary for the Court to examine the state of the account between the parties. Now this, in my opinion, is a thing which the Court is not entitled to do, since by merely taking the account the Court would necessarily be recognizing wagering transactions as producing legal obligations and therefore doing the very thing which the Gaming Act, 1845, does not permit to be done. In truth, a claim such as the present to recover an overpayment in respect of wagering transactions must, in my view, inevitably be founded upon an account between the parties. It would plainly not be possible for a bookmaker to bring an action for an account of the wagering transactions between himself and a client and repayment of any amount found upon the taking of the account to have been overpaid. The bookmaker, in my opinion, cannot put himself in a better position if instead of asking for relief of that character he asks for repayment of a specified sum alleged by him to have been overpaid. In each case the fact and the amount of overpayment can only be ascertained through what is in reality (though in the latter case not necessarily in form) the taking of an account. The contrary view would produce a remarkable result. If one party to wagering transactions alleges that he has overpaid the other party and claims the amount overpaid as money had and received to his use, it would be open to the defendant, on principle and apart from the Gaming Acts, to deny the overpayment and adduce evidence of further wagering transactions as the result of which, at the date of the alleged overpayment, he was on balance a winner by an amount greater than that claimed. But having regard to the Gaming Acts the Court, in my opinion, could not listen to such a defence. The claim for money had and received is a claim to recover money which in the eye of the law the defendant is liable to repay to the plaintiff. Such a claim, if otherwise maintainable, could not be defeated by setting up as a defence to it a cross-claim based upon no recognizable legal obligation. In other words, the Court could not examine the state of

account between the parties; and as the plaintiff's claim could not be dealt with in the absence of an examination of the whole account it must of necessity fall. As I have already pointed out, this is the substance of the position in the present case and the appeal succeeds upon this ground.

But there is another ground upon which the action ought in my opinion to have been dismissed, and as we have had the benefit of a full argument upon it I think it right to express my views upon it. The plaintiff's claim is for money had and received, and it is based upon what the learned county court judge found to be a mistake of fact. The question which arises is, Can such a claim succeed in the circumstances of this case? In my opinion it cannot. The nature of the claim to recover money paid under a mistake, and the limits within which it can be made, have been the subject of much controversy and the difficulties involved in providing a comprehensive solution to these problems have not as yet been overcome. Two propositions can, I think, be put forward with certainty. The first is that the claim cannot now be said to be based on some rule of aequum et bonum by virtue of which a man must not be allowed to enrich himself unjustly at the expense of another. Lord Mansfield's views upon those matters, attractive though they be, cannot now be accepted as laying the true foundation of the claim. The second proposition is that the claim is based upon an imputed promise to repay. "All these causes of action are common species of the genus assumpsit," said Lord Sumner in Sinclair v. Brougham. (1) "All now rest, and long have rested, upon a notional or imputed promise to repay."

So much is I think clear. But the question still remains, In what circumstances will the law impute a promise to repay where the payment was made under a mistake? That it will not do so in all circumstances is manifest. In general, no such promise can be imputed where the payment is made under a mistake of law. Nor can a promise to repay be imputed which, to quote again Lord Sumner's words in Sinclair v. Brougham (1), "if made de facto" the law "would inexorably avoid."

(1) [1914] A. C. 398, 452.

In Sinclair v. Brougham (1) the promise if made de facto would have been ultra vires the society concerned; it could not therefore be imputed, and the claim so far as it was for money had and received necessarily failed for that reason.

In the light of these observations it is convenient at this point to examine the present claim in relation to the provisions of the Gaming Act, 1892. Sect. 1 of that Act provides that "any promise, express or implied, to pay any person any sum of money paid by him under or in respect of any contract or agreement rendered null and void by" the Gaming Act, 1845 ".... shall be null and void, and no action shall be brought or maintained to recover any such sum of money." It is said that the sum overpaid was within the meaning of this section a sum paid by the plaintiff in respect of a wagering transaction and that the promise to repay which it is desired to impute is an implied promise to pay the plaintiff that sum. I cannot accept this argument.

In the first place, the section is concerned with promises to "pay" - this appears to me to contemplate an initial payment to be made in the future by the promisor, not a repayment under a promise imputed by law of money already paid to the promisor to which he had no claim. This construction is in accordance with the recognized mischief which the Act was designed to remedy. In the next place the payment by the promisee in relation to which the promise to pay must be given in order that it may be avoided by the section, is a payment of money paid by the promisee "under or in respect of" a gaming contract. In my opinion these words are not apt to include the case where the payment, although connected historically with a gaming contract, is in fact an overpayment made in the mistaken belief that it was due under such a contract.

I now return to the point at which I left the main question. A great part of the argument was concentrated on the words used by Bramwell B. in Aiken v. Short. (2) He said: "In order to entitle a person to recover back money paid under a mistake of fact, the mistake must be as to a fact, which, if

(1) [1914] A. C. 398.

(2) 1 H. & N. 210, 215.

true, would make the person paying liable to pay the money; not where, if true, it would merely make it desirable that he should pay the money." In that case the plaintiff bank had acquired, as it thought, certain property which was subject to an equitable charge and had agreed with its supposed grantor (who with others was personally liable for the amount secured by the charge) to pay it off. This it did. It was afterwards discovered that the grantor had no title to the property and the bank sued the defendant to whom the charge had belonged to recover the money which it had paid. Now it is to be observed that in that case the bank, although contractually bound to its supposed grantor to pay off the charge, was under no such liability towards the holder of the charge herself; and although the payment was thought by the bank to be beneficial to itself in that it was, as it thought, discharging a contractual obligation and freeing its property from an incumbrance, yet it was not under any mistaken belief that the payee could demand payment. In other words, the payment was in any event, whether or not the supposed facts were true, a voluntary payment as between payer and payee.

The passage which I have quoted from Bramwell B.'s judgment has been referred to with approval by several learned judges, but always I think by way of dictum. References of this kind were made by Farwell J. in In re The Bodega Co., Ld. (1); by Rowlatt J. in Maskell v. Horner (2); and by Pollock M.R. in R. E. Jones, Ld. v. Waring & Gillow, Ld. (3) But before considering further this statement of the law it is convenient to examine some more modern decisions in which the character of the mistake required to found the action has been considered. In Sinclair v. Brougham (4) Lord Dunedin compares the cases of delivery of a chattel and delivery of money with reference to the "intention" of the deliveror. In R. E. Jones, Ld. v. Waring & Gillow, Ld. (5), Lord Sumner elaborates this comparison. He points out that if a tradesman delivers goods to the wrong person, the absence of any real intention prevents

(1) [1904] 1 Ch. 276, 286.

(2) [1915] 3 K. B. 106, 109.

(3) [1925] 2 K. B. 612, 631.

(4) [1914] A. C. 431.

(5) [1926] A. C. 670, 696.

the property from passing. Cases where money paid under a mistake of fact is recoverable he founds upon lack of real intention on the part of the payer, although he appears to say or to imply that in order to prevent there being any real intention the facts must be such that the payee knows, or must be deemed to know, of the mistake, a limitation which I must confess I find it a little difficult to appreciate if it is intended to be of general application. The last case in which the matter was considered was Norwich Union Fire Insurance Society v. William H. Price, Ld. (1), decided by the Privy Council, and I will quote two passages from the judgment of the Judicial Committee in that case, which was delivered by Lord Wright(2): "The facts which were misconceived were those which were essential to liability and were of such a nature that on well-established principles any agreement concluded under such mistake was void in law, so that any payment made under such mistake was recoverable. The mistake, being of the character that it was, prevented there being that intention which the common law regards as essential to the making of an agreement or the transfer of money or property." Later on he said(3): "It is true that in general the test of intention in the formation of contracts and the transfer of property is objective; that is, intention is to be ascertained from what the parties said or did. But proof of mistake affirmatively excludes intention. It is, however, essential that the mistake relied on should be of such a nature that it can be properly described as a mistake in respect of the underlying assumption of the contract or transaction or as being fundamental or basic."

The view of the law developed in the judgments to which I have just referred affords an additional guide. It is, I think, instructive to consider the words of Bramwell B. referred to above in the light of these authorities. In the first case which he mentions, namely, that where the supposed fact if true would have made the person paying liable to pay the money, the mistake is a mistake as to the nature of the transaction.

(1) [1934] A. C. 455.

(2) Ibid. 461.

(3) Ibid. 463.

The payer thinks that he is discharging a legal obligation whereas in truth and in fact he is making a purely voluntary payment. Such a mistake is to my mind unquestionably fundamental or basic and may be compared, at least by way of analogy, with the class of case in which mistake as to the nature of the transaction negatives intention in the case of contract. But the second case which he mentions, namely, that where the supposed fact would, if true, merely make the payment desirable from the point of view of the payer, is very different. In that case the payment is intended to be a voluntary one and a voluntary payment it is whether the supposed fact be true or not. It appears to me that a person who intends to make a voluntary payment and thinks that he is making one kind of voluntary payment whereas upon the true facts he is making another kind of voluntary payment, does not make the payment under a mistake of fact which can be described as fundamental or basic. The essential quality of the payment, namely its voluntary character, is the same in each case. If a father, believing that his son has suffered a financial loss, gives him a sum of money, he surely could not claim repayment if he afterwards discovered that no such loss had occurred; and (to take the analogous case of contract) if instead of giving him money, he entered into a contract with his son, he surely could not claim that the contract was void. To hold the contrary would almost amount to saying that motive and not mistake was the decisive matter.

I come therefore to the conclusion that the observations of Bramwell B., supported as they are by much weight of judicial opinion, are, so far as regards the class of mistake with which he was dealing, in agreement with the more recent authorities, and I propose to follow them. It was said on behalf of the respondent that these observations do not correctly state the law. I do not agree, although I am disposed to think that they cannot be taken as an exhaustive statement of the law but must be confined to cases where the only mistake is as to the nature of the transaction. For example, if A makes a voluntary payment of money to B under the mistaken belief that he is C, it may well be that A can recover it. Bramwell B. was not dealing

with a case such as that, since he was assuming that there was no such error in persona. If we are to be guided by the analogous case of contract, where mistake as to the person contracted with negatives the intention to contract, the mistake in the case which I have mentioned ought to be held to negative the intention to pay the money and the money should be recoverable.

But it is not necessary to pursue this matter further. It is sufficient to say that in my opinion the present case falls within principles laid down both by Bramwell B. and in the more recent authorities. In making the payment the respondent was, it is true, under a mistake as to the nature of the transaction. He thought that a wagering debt was due from himself to the appellant, whereas in fact it was not. But if the supposed fact had been true, the respondent would have been under no liability to make the payment which therefore was intended to be a voluntary payment. Upon the true facts the payment was still a voluntary payment; and there is in my opinion no such fundamental or basic distinction between the one voluntary payment and the other that the law can for present purposes differentiate between them and say that there was no intention to make the one because the intention was to make the other.

For these reasons I am of opinion that the appeal must be allowed with costs here and below. I should add that it follows from what I have said that I am unable to agree with the dictum of Channell J. in Gasson v. Cole (1), upon which reliance was placed by the respondent.

SCOTT L.J. The argument for the appellant fell into two broad divisions. The first was that it was impossible for the judge to give judgment for the amount claimed without in effect enforcing claims for gaming debts and thus transgressing s. 18 of the Gaming Act, 1845.

I think the appellant was right on this first ground.

The second was that there was no such mistake of fact proved, or capable of being proved, as is necessary to found

(1) 26 Times L. R. 468, 469.

the old common law action for money had and received. This second submission was based mainly on a ground which I think insufficient by itself to entitle the appellant to our judgment; but there are in my opinion two other grounds for holding that this second submission also must succeed.

I will deal with the first submission first. The respondent is a bookmaker. The appellant is a publican who was a regular customer of the respondent for betting transactions. The nature of the mistake, which led to the alleged overpayment of 24l. 2s. 1d. upon which the action was brought, was proved in evidence to have been a clerical error by the respondent's clerk which led her to give the appellant credit for the sum of 24l. 2s. 1d. twice over; thus causing respondent to pay to the appellant 24l. 2s. 1d. too much. It happened in this way. That figure was the credit balance of wins by the appellant over his losses for June 4, 1936, and it was shown as a credit to the appellant at the foot of the first page of an account dated June 6, 1936, which was delivered by the respondent as bookmaker, to the appellant, as customer. The second page of the account was for the bets of June 5, but the credit balance of June 4 was carried forward from page 1, and shown on the top of page 2, and was therefore included in the final credit balance in favour of the defendant of 22l. 15s. 10d. shown at the bottom of page 2. The appellant called on June 6 to collect his winnings. The respondent's clerk did not notice the carry forward on page 2 of the 24l. 2s. 1d. from page 1, assumed that the appellant had on June 5 won 22l. 15s. 10d. on balance, whereas he had in fact on that day lost 1l. 6s. 3d. on balance of the day, and accordingly paid him 46l. 17s. 11d., the total of the two credit balances. The appellant in evidence alleged that he had won other bets which left the respondent his debtor to the extent of 9l. 13s. 4d. even after payment of the 46l. 17s. 11d. The action was brought by the respondent for the 24l. 2s. 1d. overpaid on the clerical mistake. The appellant counterclaimed for the 9l. 13s. 4d.

In order to establish the above facts and thereby to prove his mistake, the appellant was compelled to put the whole account before the Court and invite the Court to ascertain

what was the true balance figure of bets lost and won, on each of the two days. There was, of course, no legal obstacle to the Court taking cognizance of the fact that the respondent was voluntarily giving the appellant credit for the appellant's winnings and thus paying them in account; but to ask the Court to recognize the respondent's winnings from the appellant and to set them off against his losses was in effect to ask the Court to enforce those winnings against the appellant. It was impossible for the Court to verify either the fact or the amount of the respondent's alleged mistake without going through the above process and thus in effect enforcing the respondent's claims to set off his winnings against his losses.

In the same way it was impossible to ascertain whether the sum of 24l. 2s. 1d., which on the above facts appeared to have been an overpayment, was in truth what it appeared to be without investigating the appellant's counterclaim and enforcing the various items pro and con which might thereby be established. Until that was done, the Court could not be satisfied as to what was the final position on the issue of overpayment by the respondent to the appellant. Both investigations by the Court, on the claim and the counterclaim, were in my view equally forbidden by s. 18 of the Act; for taking an account, whether at common law or in equity, is just as much enforcing a claim as giving judgment for a liquidated claim. Where the mistake upon which a plaintiff relies to justify a claim for money had and received to his use is one that can only be ascertained by investigating betting accounts, the Court cannot lend its aid without transgressing the statute. It follows that the Court ought to have refused to look at the accounts and to have dismissed the action on the ground that it was being asked to enforce gaming contracts contrary to s. 18 of the Act of 1845.

I now deal with the second submission, namely, that even assuming the first objection to be insufficient, there was here no such mistake of fact as is essential to the rule of the common law that money paid in mistake of fact may be recovered.

The learned county court judge relied upon a dictum of

Channell J. in Gasson v. Cole (1), a case where the plaintiff was suing for money had and received in connection with bets on horse-racing. In that case the plaintiff acting as agent for the defendant, a bookmaker, had placed a bet for the defendant on a horse which had come in second, but which, on the first horse being held by the stewards to be disqualified, was declared the winner. The plaintiff collected the amount won on the bet, 275l., and, believing that the defendant had really won, paid it over to him. After that the Jockey Club Committee reversed the stewards' decision, and the plaintiff sought to recover the 275l. from the defendant as money had and received on the ground that he had paid it in mistake of fact. There were other complications of fact in the case, but the above is a sufficient statement to explain the dictum, which is reported as follows: "During the argument he (the learned judge) had asked Mr. Colam whether the rule that money paid under a mistake of fact should be paid back applied in a betting transaction. If it was a clear mistake of fact, he thought that the person would be entitled to recover the money back."

The case was decided against the plaintiff on other grounds, and thus Channell J.'s opinion never became the basis of decision. But the dictum embodies the legal basis of the county court judge's decision in favour of the respondent, and we have therefore to decide whether it is right or wrong. In my opinion it is wrong.

The main ground on which Mr. Micklethwait for the appellant sought to attack the dictum was that the action for money had and received founded on mistake of fact can never lie, unless the mistake is one which induces in the plaintiff's mind a belief that he is under some legal liability to the defendant from which the payment will wholly or in part discharge him. For reasons which I will give presently I do not think that he is entitled to succeed on this particular ground. But in my opinion there are two other grounds upon which his submission ought to succeed. In the first place there is the broad ground, explained by the Master of the Rolls,

(1) 26 Times L. R. 468, 469.

that the mistake inducing the payment here had not that fundamental character which is necessary to establish a cause of action for money had and received by reason of a mistake of fact. The second is that even if the mistake was sufficiently fundamental, s. 18 of the Gaming Act, 1845, affords what may be called a special defence where the mistake is about betting transactions. I will deal with this ground first. It is really only another aspect of the first ground of appeal.

Where the mistake relates to the amount of an honour credit for bets, the statutory veto upon the reception of evidence about gaming transactions, which I have discussed upon the first argument for the appellant, creates a special impediment, and in effect constitutes a special defence to the action for money had and received, by making it impossible to prove the mistake upon which the plaintiff is basing his claim. The position thus created is closely analogous to that which arose through the doctrine of ultra vires in Sinclair v. Brougham (1), where Lord Sumner(2) used the expression already quoted by the Master of the Rolls to the effect that a promise to repay will not be implied in law if an actual promise would in law be void. This special defence is in itself a sufficient reason for allowing the appeal.

Before adding what little I have to add to my Lord's discussion upon the essential nature of the action for money had and received when based on a mistake of fact, I will consider the particular argument advanced by Mr. Micklethwait. The well known passage in Bramwell B.'s judgment in Aiken v. Short (3) is perhaps the strongest statement of the proposition upon which he relied, but I agree with the Master of the Rolls that the facts of that case were not such as to make what the learned Baron there said the necessary basis of decision in that case. Indeed I do not think that this limiting proposition of the law about mistake of fact as one basis of the action for money had and received has ever been the direct subject of decision, although it has been frequently stated almost as if it were an accepted rule of law. I venture to

(1) [1914] A. C. 398.

(2) Ibid. 452.

(3) 25 L. J. (Ex.) 321, 324.

think that the mind of the Court was in all the cases where the statement has been made concentrated on the particular circumstances under discussion, and was expressing a conclusion appropriate to the facts before it rather than attempting to lay down any absolute or general rule of law. But as counsel for the appellant in the present appeal contended that there is such a rule of law, it is desirable to quote some of the leading expressions of judicial opinion upon which he relies, and all the more so as they are expressed in rather definite language.

In Kelly v. Solari (1) Parke B. said: "I think that where money is paid to another under the influence of a mistake, that is, upon the supposition that a specific fact is true, which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back."

In Aiken v. Short (2) per Bramwell B. (which is a rather fuller report than in 1 H. & N. at p. 215): "It seems to me that the right to recover money paid under a mistake of fact must have reference to a belief of the existence of a fact which, if true, would have given the person receiving a right against the person paying the money; and it never can be applicable to a case where the fact mistaken is a fact which would merely have made it desirable for the person paying it to pay to the person receiving it. I do not know whether that is a sufficiently comprehensive principle, but it is one which has existed throughout in my mind."

In The Bodega Co. case(3), Farwell J. said of the passage last quoted: "That, I apprehend, means this. If you are claiming to have money repaid on the ground of mistake, you must show the mistake is one which led you to suppose you were legally liable to pay."

In Maskell v. Horner (4), per Rowlatt J.: "The plaintiff claims to recover these sums as paid under a mistake of fact, or, alternatively, as paid not voluntarily, but to prevent

(1) 9 M. & W. 54, 58.

(2) 25 L. J. (Ex.) 324.

(3) [1904] 1 Ch. 276, 286.

(4) [1915] 3 K. B. 106, 108.

his goods being seized and under protest. I think it is necessary to state two principles of law to which he appeals and then to see if the circumstances bring him within either. To recover under the first principle there must be a mistake of fact and a fact going to the supposed liability. That is laid down in Kelly v. Solari (1) and Aiken v. Short. (2) An action on this ground, therefore, can only be brought by one who pays, believing in his liability, because by mistake he believes a fact upon which his liability depends." The case was decided in the Court of Appeal upon the ground that the payments were recoverable as having been made under protest to prevent seizure of the plaintiff's goods, and the above statement by Rowlatt J. remains a dictum.

The last citation I want to make is from the case of Steam Saw Mills Co. v. Baring Brothers & Co. (3) where Lord Sterndale M.R. said: "There seems to be ample authority for this, that if a person, under a mistake of fact, pays money, which he is not liable to pay, he may recover it back; but it makes all the difference in the world whether the fact of which he was ignorant would have discharged him from the liability to pay."

In none of the above cases, as I have already said, not even in Aiken v. Short (4), was there a decision of the Court that the action failed simply because the mistake did not induce a belief of liability. And indeed in Kerrison v. Glyn, Mills, Currie & Co. (5) it was definitely decided by Hamilton J. and by the House of Lords that the plaintiff was entitled to recover a payment made to the defendants for the purpose of meeting an anticipated liability although he then knew that no actual liability had yet attached to him. The decision of the House of Lords seems to me conclusive that the rule as stated in Aiken v. Short (6) cannot be regarded as final and exhaustive in the sense that no mistake, which does not induce in the mind of the payer a belief that payment will discharge or reduce his liability, can ground an action for money had and

(1) 9 M. & W. 54.

(2) 1 H. & N. 210.

(3) [1922] 1 Ch. 244, 250.

(4) 1 H. & N. 210; 25 L. J. (Ex.) 321.

(5) 15 Com. Cas. 1; 17 Com. Cas. 41.

(6) 1 H. & N. 215; 25 L. J. (Ex.) 324.

received. It is, of course, obvious that such a belief must in fact have been induced in a very high percentage of mistaken payments giving rise to a dispute; in human affairs the vast majority of payments made without any fresh consideration are made to perform an obligation or discharge a liability; and I doubt not that performance of an obligation would be accounted discharge of a liability for the purpose of the Aiken v. Short (1) proposition. For this reason of human nature, that proposition is very often - and perhaps usually - a crucial test of the question whether the payment was in truth made by reason of a mistake or was merely voluntary and therefore irrecoverable. But I agree with the view of the Master of the Rolls that the final demarcation of the boundaries of the old action of money had and received has not yet been achieved, and that their final delineation can only be worked out as concrete cases arise and bring up new points for decision. And in refusing assent to the appellant's argument that the Aiken v. Short (1) proposition is of itself necessarily sufficient to fix the boundary, I desire to keep clearly open the possibility of the common law treating other types of payment in mistake as falling within the scope of the action for money had and received. Without expressing any opinion, I recognize, for instance, the possibility that there may be cases of charitable payments or other gifts made under a definite mistake of person to be benefited, or of the substantial nature of the transaction, where on consideration the old principles of the action might still, in spite of limiting decisions, be held to cover such circumstances.

This whole group of common law actions known as "implied assumpsit" or "implied contract" permits the redress of so many widely different types of grievance, and thus is so useful in our jurisprudence, that it seems to me just as important not to cut them down as it is not to enlarge them beyond their true legal boundaries. And of them all the action for money had and received has the greatest variety of application and is perhaps the most useful. The name "implied contracts" is ambiguous, as it is often used of true consensual contracts,

(1) 1 H. & N. 210, 215; 25 L. J. (Ex.) 321, 324.

which are not wholly expressed in writing or orally and have to be inferred in greater or lesser degree from the conduct of the parties. The implied contract for money had and received has no element of agreement about it; it is implied in law, the name being a misnomer. The history of implied contracts in the non-consensual sense has passed through two stages - the first during the 17th and 18th centuries, when it was being invented by the Courts and its range was ever expanding; the second from the middle of the 19th century, since when the pendulum has swung the other way and our common law Courts have tended to restrict it. It is not relevant to the present case to consider that history in detail, but the 14th Lecture by the late Professor Ames upon Implied Assumpsit printed in his Lectures on Legal History (Harvard 1913, p. 149) is full of illumination. He brings out clearly the complete absence of any consensual element. There is no doubt that the moral principle of "unjust enrichment," to which he refers and which is recognized in some systems of law as a definite legal principle, and indeed underlay Lord Mansfield's famous dictum in Moses v. Macferlan (1) in the year 1760, has now been rejected by English Courts as a universal or complete legal touchstone whereby to test this cause of action. But Professor Ames was as late as the early years of the present century still treating that principle as the underlying source of obligation upon the basis of which the action had been developed in our common law: see pp. 160 and 166. Leake devoted a long sub-division of the First Edition of his book on Contracts (published in 1867) to the title of "Contracts Implied in Law" (pp. 38 to 75) and commenced it with these two paragraphs: "Simple contracts arising independently of agreement, or contracts implied in law, include those transactions affecting the two parties, other than agreement between them, upon which the law operates by imposing a contract, that is, a liability on the one side and correlative right on the other." "The transactions between two parties, other than agreement, which give rise to contracts, may be described generally as importing that some undue

(1) 2 Burr. 1005.

pecuniary inequality exists in the one party relatively to the other, which justice and equity require should be compensated, and upon which the law operates by creating a debt to the amount of the required compensation."

The Third Edition of Bullen & Leake (1868) at p. 44 under the title of the "indebitatus count for money had and received," repeated the effect of the second of the above sentences; so did Professor Dicey in his book on Parties to an Action, published in 1870, at p. 91.

So wide a statement of the principle upon which the action for money had and received is founded, however eminent the jurists who supported it, does not at the present time afford an authoritative criterion by which the Court can decide whether a given claim discloses a cause of action for money had and received. The test is too vague; and even if it was ever a test, it has certainly been modified by recent decisions which have restricted the field of this action: see Baylis v. Bishop of London (1), per Hamilton L.J.; Sinclair v. Brougham (2), per the same learned judge as Lord Sumner; and Holt v. Markham (3), per Scrutton L.J. But my citations from jurists of such high standing as writers on the common law do emphasize the importance of trying to find some common positive principles upon which these causes of action called "implied contracts" can be said to rest, and which will not altogether exclude that of unjust enrichment embodied in those citations.

An additional reason for keeping the door open is the very heterogeneous list of causes of action which unquestionably fall within this field of implied contracts. They are so various in kind as almost irresistibly to invite the inference that there may be one or more unifying principles upon which they rest. If one takes the action for money had and received by way of illustration of this point, one finds assembled under that heading the following wholly different types of causes: (1.) money paid in mistake of fact; (2.) money paid for a consideration which has failed; (3.) money paid because it

(1) [1913] 1 Ch. 127, 140.

(2) [1914] A. C. 398, 453.

(3) [1923] 1 K. B. 504, 513.

was extorted colore officii, or by duress, etc.; (4.) cases where the plaintiff has had an actionable wrong done him by the defendant, and "waiving the tort" sues in assumpsit - whether any of his money has actually passed from himself to the defendant or not. In this context I venture humbly and respectfully to doubt whether the criterion suggested by Viscount Haldane L.C. in Sinclair v. Brougham (1) that "the fiction" (i.e., the common law fiction of an implied contract) "can only be set up with effect if such a contract would be valid if it really existed" is consistent with the common law history of these implied contracts; for some of them are quite incapable of formulation as real - i.e., consensual - contracts.

But I am in complete agreement with the Master of the Rolls that there is a plain principle applicable to all those cases of payments in mistake of fact, and that is that the mistake must be in some aspect or another fundamental to the transaction. On the facts of this case there was no fundamental mistake. To pay 24l. for a betting debt is just as much in the eye of the law a purely voluntary gift as a wedding present of 24l.: the law prevents the plaintiff from saying that he intended anything but a present. I agree that the appeal must be allowed.

Solicitors for appellant: Ingledew, Sons & Brown, for Moxon & Petty, Newport, Mon.

Solicitors for respondent: Gibson & Weldon, for Everett & Everett, Pontypool.

(1) [1914] A. C. 398, 415.

R. F. S.