( 5 )[Pull Bench.]
Present: Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Wood Renton.
SINNATURAI z>. CHINNIAH.C. B.t Point Pedro, 10,193.
Ordinance No, 8 of 1844.*
A cheetoo club comes within the scope of the Lottery Ordinance(No. 8 of 1844), and no action can be maintained for the recoveryof prizes won at the drawings of such a club; but contributionsmade by the members may be recovered, provided they have notbeen paid over to any one else in accordance with the rules of suchclub.
HE plaintiff appealed from a judgment of the Commissioner ofRequests dismissing her action for the recovery of a money
prize won at a drawing of a club known as a cheetoo olub, and also ofthe contributions made by her towards the funds of the club.
E. W. Jayewardene (with him Balasingham), for the plaintiff,appellant.—Cheetoo clubs do not come within the scope of theLottery Ordinance, No. 8 of 1844. No one wins a prize, and no•one risks anything. The contributors get back their contributionsand no more. The mere use of the money is not such a benefit asis contemplated by section 3 of Ordinance No. 8 of 1844 (15 NatalL. R* 854 and Natal Law Quarterly 84). A lottery is a distribu-tion of prizes by lot or chance, Barclay v. Pearson (1); 0*Connorv. Bradshaw (2), A society constituted (avowedly) for the benefitof its members, making certain of them entitled to particularbenefits by thtfc process of periodical drawings, does not come withinthe Lottery Acts, Wallingford v. Mutual Society (3). In any event• the plaintiff is entitled to be repaid the deposits as money hadand received by the defendant for and on behalf of plaintiff.
Bawa (with him Wadsworth), for the defendant, respondent.—The dismissal of the action is right. Cheetoo clubs have been heldto be illegal and to fall under the Lottery Ordinance (Vand. 180).[Hutchinson C.-J.—We are of that opinion and do not wish to hear*you on that point. What have you to say to the repayment of thedeposits?] The deposits must have already been paid tt> the othermembers of the club; it cannot be said that because the plaintiff
(T).(1803) 2 Ch. 154.
(2) (1850) 5 Ex. 882.
(3) L. R. 5 AC. 685.
( 6 )
1906. did not get what the others got that the constitutions have nottfovember 7. been exhausted.-
E. W. Jayewardene, in reply.
7th November, 1906. Hutchinson C.J.—
The reason given in the petition of appeal for alleging that thejudgment of the Court of Requests in this case is wrong is thatthese cheetoo clubs do not come within the scope of the LotteryOrdinance, No. 8 of 1844. On that point we are agreed that anarrangement of this kind, by which prizes are distributed by lotris a lottery. The appellant contended that there were no prizes,inasmuch as every person who joins the club simply gets back allhis money and neither more nor less.. In my opinion, however, aperson who at. the beginning of the drawings (say at the end of thefirst month) gets a sum equivalent to the whole of the contributionswhich he will have to make during the whole of the term for whichthe club is to last gets a prize. The plaintiffs in their plaint describeit as a prize, and the defendants in their answer refer to it as a prize.The advantage is the getting of the use of the money at the beginningof the term—£10 in hand to-day is something better than £10 a yearor two hence—the advantage is to get it now at once; and gettingthat advantage by means of lots, you get a prize by the drawing oflots, and being therefore a lottery'it is not a lawful contract, and onthat point the decision of the Court of Requests is right. Theappellant further relies on a claim which she made also in the plaint,to recover Rs. 44, the amount of the contribution which she saysshe had made for what is described as w the other number of thesecond club.” The defendants deny that she paid any contributionfor two numbers in the second club. If she did make any such con-tributions she is entitled to get back from the treasurer of that clubany of those contributions which still remain in his hands, andwhich have not been paid over to any one else in pursuance of therules of that club. One of the issues settled for trial was: ” Didthe second plaintiff contribute to two numbers of the4 second cheetooclub, and if so how much?” There is no answer given by the Courtof Requests to that issue. If the plaintiff thinks it worth while tohave that issue tried, we will send the case back for trial of the issuewhether the plaintiff contributed to two numbers of the secondclub, and if so, are, her contributions or any of them still in the handsof the defendants or any of them? ”
< t We think that the appellants should pay the costs of this appeal.
Wendt J.—I quite agree and have nothing more to add.
Wood RAnton J.—I also agree and would add nothing.
SINNATURAL v. CHINNIAH