Indemnified.

Duncan v. Hill (1873), L. R. 8 Ex. 242 ; here the Court

held that there could be no implied promise by a principal

to his agent to indemnify him against loss or damage

which he had sustained by reason of his own default, and

not by reason of his having entered into the contracts into

which he was authorized to enter by his principal.

Mils V. Pond (1898), 1 Q. B. 426. C. A. ; here it was

held by the Court of Appeal that the plaintiff, a stock-

broker, could not maintain an action for indemnity against

the defendant, his principal, when the loss in respect of

which he sought to be indemnified had arisen not through

any breach of contract by the defendant, but through the

wrongful sale of certain stock by the plaintiff.

(d) If the loss or damage is incurred upon a transaction

which is illegal, the agent loses his right to be indemnified.

Tkacker v. Hardy (1878), 4 Q. B. D. 685, & 48 L. J.

Q. B. 289 ; here Lindley, J., said ; " Upon general principles

an agent is entitled to an indemnity from his principal

64 The law of agency.

against liabilities incurred by the agent in executing the

orders of his principal, unless those orders are illegal, or

unless the liabilities are incurred in respect of some illegal

conduct of the agent himself, or by reason of his default."

But though it is an established rule of law that joint

tort-feasors cannot have any redress or contribution against

each other, still an agent will be entitled to an indemnity

from his principal where he suffers damage from innocently

doing an illegal act which is not illegal in itself, but merely

Illegal because the principal has not the authority he pre-

tends to have — vide Merryiveather v. Nixon (1799), 8 T. R.

186, And Dugdale V. Lovering (1875), l. R. 10 c. P. 196.

It is now necessary to consider whether an agent who

has been employed by his principal to carry out a gaming

or wagering transaction can claim to be indemnified by

the principal against any loss or damage which he (the

agent) may have sustained by reason of that transaction ;

or whether, on the ground of the illegality of such a

transaction, the agent forfeits his right of indemnit}^.

At Common Law, gaming or wagering contracts were

not illegal, but were perfectly valid and enforceable, ex-

cepting in those cases where they were considered by the

Courts to be of such a nature as to be contrary to public

policy ; e.g. a wager upon the duration of the life of

Napoleon Buonaparte was held to be void and unenforce-

able, as tending to bring about the assassination of a foreign

sovereign— mZe Oilhert v. Sykes (1812), 16 East. 150.

But from time to time various statutes have been

passed with the object of discouraging and putting down

wagers.

Thus, 16 Car. II. c. 7, provided, that any sum of money

exceeding ВЈ100 lost in playing at any game or pastime,

or in betting on the ])layc'rs, should be irrecoverable, and

RIGHTS OF AN AGENT AGAINST HIS PRINCIPAL. 65

that every kind of security given for money so lost should

be void.

9 Anne c. 14 further provided that securities of every

kind given for any sura of money lost in playing at any

game or pastime, or in betting on the players, or know-

ingly advanced for such purposes, should be void; and

that the loser of ВЈ\0 or upwards might recover it back,

if paid, by action of debt brought within three months of

payment.

5 & 6 Will. IV. c. 41 repealed 9 Anne c. 14 so far as

it avoided securities, and provided instead, that the secu-

rities specified in that Act should henceforth be deemed

to have been originally given upon an illegal consideration.

These three statutes, it will be observed, dealt only

with wagers of a purely sporting nature, and with the

securities given in respect of such wagers.

We now come to the Gaming Act of 1845 (8 & 9 Vict.

c. 109), the 18th section of which provides: "That all

contracts or agreements, whether by parole or in writing,

by way of gaming or wagering, shall be null and 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 which shall have been deposited in the

hands of any person to abide the event on which any

wager shall have been made. Provided always that this

enactment shall not be deemed to apply to any subscription

or contribution, or ao-reement to subscribe or contribute

for or towards any plates, prizes, or sum of money to be

awarded to the wanner or winners of any lawful game,

sport, pastime, or exercise."

This Act repeals the statutes of Charles and Anne re-

ferred to above ; but leaves in force the provision of 5 & 6

Will IV. c. 41, regarding securities given for money lost

over sporting wagers.

The effect of section 18 of the Gaming Act, 1845, may

be summarized as follows : —

F

<56 THE LAW OF AGENCY,

(a) It renders wagering contracts of every kind void

and unenforceable, but does not render them illegal, in

the sense of being prohibited by the law.

Fitch V. Jones (1855), 5 E. & B. 238; this action was

brought by the indorsee of a promissory note given in

payment of a bet on the amount of the hop duty. Lord

Campbell, C. J., said ; " The note was given to secure pay-

ment of a wagering contract, which even before 8 & 9 Vict.

c. 109, the law would not enforce ; [In a previous case it

had been decided that a wager on the amount of the hop

duty was unenforceable, as being against public policy]

but it was not illegal. There is no penalty attached to

such a wager ; it is not in violation of any statute, nor

of the Common Law, but it is simply void, so that the

consideration was not an illegal consideration, but equivalent