LEICESTER AND CO Vs. SPMULLICK

JUDGEMENT

(1.) There is not much dispute about the facts of this case and they are simple. The plaintiffs sue as a firm and are described in the cause-title as carrying on business in co-partnership as Turf Accountants, a business otherwise known as that of bookmakers, which consists of gambling on horse races, the profits of which they share. The defendant engages in horse racing; he owns race horses and bets on horse races in considerable amounts. On the 20th October 1920 he owed the sum of Rs. 8,500 which he had lost to the plaintiffs at the Barrackpore races. As he did not pay, the plaintiffs reported him to the Barrackpore Turf Club, by the Secretary of which he was, it has been stated, though no formal proof has been given of the fact, reported to the Royal Calcutta Turf Club. On the 6 December, the defendant received a letter signed by the Secretary of the Royal Calcutta Turf Club referring to the report received from the Secretary, Barrackpore Races as to considerable sums owing from the defendant to several book-makers, among whom the plaintiffs are included, amounting to Rs. 45,220 in all, and informing him that if that sum was not paid into the office of the Royal Calcutta Turf Club by the 22 February, he would be posted as a defaulter and notice to that effect would be published in the Sheet Racing Calendars. Pending settlement of his account he was informed that the entries of his horses for certain races had not been accepted and that in the mean time he was not to bet or enter the race enclosures. The authority for such a letter or that the Royal Calcutta Turf Club was entitled so to deal with the defendant upon such a report, has not been questioned and the hearing has proceeded upon the basis that the letter and the penalties prescribed were in order. On the 20 December the defendant went to the Albert Club, which I am informed is an institution to which persons carrying on the business of book-makers resort, and there he found the plaintiff and his other book-maker creditors. He executed Hundies in favour of his several creditors for the amounts of his losses, among them one for Rs. 8,500 in favour of the plaintiff and at the same time wrote letters addressed to them, in a form drafted by Mr. Goodman of which the letter addressed to the plaintiffs is in the following terms:

(2.) In consideration of your withdrawing my name from the R.C.T.C. and thereby preventing my becoming posted as a defaulter, I agree to pay you the sum of Rs. 8,500 (rupees eight thousand five hundred only) and hand you my promissory note herewith for the amount named.

(3.) Subsequently the defendant's name was withdrawn and he has boon able to enter the race enclosures and to bet, and has done so, but he has not paid the amount for which he drew the Hundi in suit. The only dispute on the facts is as to how the defendant came to write that letter and to draw the Hundi. The plaintiff's account of the matter is that the defendant came of himself and wanted (sick) have his name withdrawn from the Royal Calcutta Turf Club and the defaulters list, and in consideration of the plaintiff promising to take stops to have that done, the defendant signed the Hundi and letter. The defendant assarts that what was done was done at the suggestion of the plaintiff and that the Plaintiff said ho wanted the Hundi and letter to keep his account in form, and that ho had no intention of instituting any suit against him. There is not much to choose between the versions given, by the two witnesses and the letter makes it clear what was intended. The plaintiffs now sue to recover the amount of the Hundi, and in order to succeed they rely for consideration on that stated in the letter and not on the original debt. The suit was filed under Order XXXVII of the Civil Procedure Code and the plaint states that the defendant promised to pay the sum in question "for value received." The defendant in his written statement says that the Hundi was excuted for a debt due on betting transactions. It is not till the suit comes to a hearing that the real question of fact is raised, and that is done in reply to the defendant's contention that there was no consideration. For this the parties cannot be held responsible, it is the result of a system of pleading which does not admit of a reply. This suggests that in cases where the real contest will follow from the nature of the defence, due to that being one which the defendant has to prove and the plaintiff did not anticipate, the plaintiff should be required to place on record his pleas in answer. In this particular instance no difficulty arises, but that is not always the case and it is at times embarrassing that pleas may legitimately be taken in reply which are not on record until they find their place in the issues.