#6887 - Morgan V. Ashcroft Ii - Restitution of Unjust Enrichment BCL

Morgan v. Ashcroft

Facts

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 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.

Plaintiff seeks to recover the amount of this overpayment.

Holding

Wilfrid Greene MR

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...