PART I.
Reading edition
At Common Law.
At Common Law wager-contracts were neither illegal nor void; technically, they could, like any other legal contract, be enforced by an action at law. The only obstacle in the way of obtaining this remedy was that the Courts, grudging the amount of time consumed in adjudicating upon what were often exceedingly frivolous wagers, when other more important causes were waiting for trial, took upon themselves to postpone all actions of this kind until the rest of the business had been disposed of; or, in the language of Lord Ellenborough in Gilbert v. Sykes,[1] “until the Courts had nothing better to do.” At the same time there were certain kinds of wagers which could not be enforced, as being of a mischievous, immoral tendency, or contrary to the policy of the law. Among such were:—
Wagers illegal at Common Law.
(1.) A wager which would give either party an interest in interfering with the course of justice—e.g., a wager on the conviction or acquittal of a man charged with forgery.[2] On the other hand, in Jones v. Randall,[3] it was held that there was nothing illegal in a wager as to the result of an appeal from the Court of Chancery to the House of Lords, it not 2being in the power of the parties to influence the judgment of the House, but secus if the bet had been made with a noble lord or a judge.[4]
(2.) Where the ascertainment of the fact or the event would involve inquiries respecting the age or sex of third persons or tend to make them objects of public curiosity. Thus in Da Costa v. Jones[5] a wager as to the sex of a third party was held to be illegal. In Ditchburn v. Goldsmith[6] a wager that a certain woman would be delivered of a male child before a certain date was held illegal on the ground that neither party had any interest in the question; and this in spite of the fact that the woman had herself challenged inquiry on the subject.
In Eltham v. Kingsman[7] two parties were proprietors of certain carriages called “Fly by nights,” which they let to hire at Cheltenham; the plaintiff laid a wager that a certain person would go in his “Fly by night” to the assembly room that evening. The Court were inclined to think this would be illegal as tending “to subject a third party to great inconvenience by exposing him to the importunities of the proprietors of these vehicles; any person who has walked through Piccadilly must be sensible that this is no small inconvenience.”
Where question concerned parties themselves.
The law, however, was different where the question related to a matter affecting either or both of the parties to the wager.
In Hussey v. Crickett[8] the plaintiff and defendant were dining one evening with seven other gentlemen at Furnival’s Inn Hall. The two entered into a wager of a “Rump and dozen” as to which was the elder. Each appointed one gentleman to name a day on which the registers of baptism should be produced, and to order a dinner for the “Rump and dozen.” The two gentlemen named appointed a day and ordered a dinner at the Albion in Aldersgate Street, which was paid for by one of them, but the money was repaid 3him by the plaintiff. Plaintiff won the bet, but the defendant refused to attend the dinner. Plaintiff sued to recover the amount he had paid.
While for the defendant it was argued that the wager was of a frivolous, immoral nature, and that at most plaintiff could only recover his share of the entertainment, it was replied for the plaintiff, that the wager relating to the parties themselves was not void as if it related to a stranger; that it was not of an immoral nature, as “it was for the public benefit to promote conviviality and good humour;” that the plaintiff’s loss of a share in a good dinner was not a frivolous loss in the eye of the law. Indeed, it appeared from a quotation from the Roman law, that that very universal system of jurisprudence, while discouraging wagers in general, recognised an exception where the terms of the wager bound either party to provide any form of conviviality.
Mansfield, C. J., having confessed himself judicially ignorant of the meaning of the term “Rump and dozen,” parol evidence was admitted to explain this exceedingly patent ambiguity. The term, as explained by the witnesses, seemed at any rate to bring the case within the Roman law, it being stated to signify “a good dinner and plenty of wine for all present.” Upon this state of the facts, the judges, while regretting that they had allowed the action to trouble the Court at all, judicially decided that there was nothing immoral in sitting down to a festivity! Therefore, adjudging the wager to be valid, the Court, in spite of the fact that defendant had not partaken of the dinner, ordered him to pay for the whole of it. This case is a good illustration of the kind of issues which the Courts had to try, when wagers were enforceable.
So again in Good v. Elliott[9] defendant bet the plaintiff five guineas that one Susannah Tye had purchased a certain wagon from one Coleman. This important controversy was to be determined by two arbitrators, specially appointed, and the sum of one shilling was deposited by each party to abide the event. The majority of the Court held that the action 4would lie, seeing that it did not involve any enquiry that would affect the peace of mind of a third party. Buller, J., dissented, holding that any wager which conceded a third party at all was bad. “I am of opinion that a bet on a lady’s age, or as to whether she has a mole on her face, whether she has a wart on her face (which is considered a nasty thing) is void.”
(3.) Wagers which would tend to improper discussion, e.g., concerning the amount of any branch of the Revenue.[10]
(5.) Where one party could determine the event in his own favor,[13] as a wager by an attorney’s clerk that he would not pass his examination.
(6.) Wagers were also illegal which gave either party an interest in doing or procuring some unlawful act, as a wager that Napoleon would be assassinated by a oration day,[14] or which might bias a person in the discharge of a public duty, such as a wager between two voters as to the election of a member for a county; but this was not the case where the wager was made between two persons who were not voters for that county.[15]
Wagers on abstract point of Law.
(7.) A curious attempt was made in the case of Henkin v. Guerss[16] to obtain the opinion of the Court on an abstract question of law by means of a wager. Lord Ellenborough strongly reprehended the proceeding, and refused to try the cause. The Court in Banco confirmed this decision: although they said there was nothing immoral in this wager, yet they considered it an impudent attempt to compel the Court to decide an abstract question of law not arising out of circumstances in which the parties had any interest. This reminds us of one means by which the old Roman law was developed—viz., by the practice of pupils-at-law posing the advocates in whose “chambers” they read with theoretical points of law and recording their answers.
16 Car. II. c. 7.
5The earliest statutory enactment restricting the power of enforcing gaming debts in a Court of Law was 16 Car. II., c. 7. A great improvement had been introduced into the breed of horses by the importation of a number of horses from Tangier, which formed part of Queen Catherine’s dowry, and racing under the patronage of Charles II. was fast becoming a national pastime. As a natural consequence the practice of betting increased at a proportionate rate, and to such an extent as to interfere with individuals pursuing their ordinary avocations. The statute, after reciting that all games and exercises should not be used otherwise than as innocent and moderate recreations, and not as a calling or means of livelihood, and that young people wasted their time and fortunes in the immoderate use of the same, enacts:
(1.) That if any person or persons of any degree or quality whatsoever, at any time or times, shall, by any fraud or shift in playing at or with cards, dice tables, tennis, bowls, skittles, shovel-board, or in cock-fighting, horse-races, dog matches, or other pastimes or games whatsoever, or in bearing a share or part in the stakes, wagers, or adventures, or in or by betting on the sides or hands of such as do or shall play, act, ride or run as aforesaid, win, obtain, or acquire to him or themselves, or to any other or others any sum of money or valuable thing, shall forfeit treble the sum or value of the thing won.
Sect. 3. Any person who shall play at any game aforesaid, or any other game other than with or for ready money, or shall bet on the sides of them that do play thereat, and shall lose any sum or sums of money, or other thing or things so played for, exceeding the sum of £100 at any one time or meeting, upon ticket, or credit or otherways, and shall not pay down the same at the time when he or they shall lose the same, shall not be compellable to make good the same, but the contract or contracts for the same, and for every part thereof, and all and singular judgments, statutes, recognisances, mortgages, conveyances, occurrences, bonds, bills, specialities, promises, covenants, agreements, and other 6acts, deeds, and securities whatsoever given for the same shall be void.
It will be observed that this statute aims solely at (1) cheating at play; (2) excessive gaming on credit. It does not make wagering illegal so long as it is unaccompanied by fraud, and the parties are at liberty to wager to any extent provided they pay ready money.
The next statute is 9 Anne, c. 14.
Anne, c. 14.
Section 1. All notes, bills, bonds, judgments, mortgages, or other securities or conveyances whatsoever, given, granted, drawn, entered into, or executed by any person or persons whatsoever, where the whole or any part of the consideration of such conveyances or securities shall be for any money, or other valuable thing whatsoever won by gaming or playing at any game whatsoever, or by betting on the sides or hands of them that do or shall game at any of the said games, or for repaying any money knowingly lent for the purpose of gaming or betting as aforesaid, or lent or advanced at the time and place of such play to any person playing shall be void to all intents and purposes, and that all property so encumbered shall devolve on such person as would be entitled if the owner were dead.
By section 2 any person, who at any time or sitting, by playing at cards, dice tables, or other game, losing £10, should pay the same, was entitled to recover the same by action of debt, or in default of such person suing any person, might recover treble the amount for the benefit of the poor of the parish.
Section 5 inflicts penalties on any person winning any sum of money by any fraud, and on any person who should win over £10 from any person or persons at one time or sitting.
It will be observed that this statute carried the restrictions on private betting and gaming considerably further than the Statute of Charles II. It prescribed additional penalties for fraud; it made a great reduction in the test of excessive gaming by substituting £10 for £100 as the maximum sum 7which a person might lose.[17] Further than this, it made it penal to exceed the limit thus laid down, instead of merely making the money irrecoverable. It has been held that the offence under the statute was complete by the mere fact of winning the moneys whether it were paid over or not.[18]
Betting at games alone within statute.
It should be observed that the statute does not deal with wagering generally, but only with gambling and betting at games, sports, or pastimes. In Applegarth v. Colley[19] it was decided that the games and pastimes aimed at by both statutes are the same.
Both these points have an important bearing on the law as it exists at the present day, as will be seen when we come to discuss the provisions of 5 & 6 William IV. Before dealing with the latter statute, it will be important to notice a few points which were decided on the effect of the two earlier statutes, otherwise the provisions of the Statute of William IV. will not be intelligible.
Games within the statute.
(1.) As to the games dealt with, the Statutes of Charles II. and of Anne are very general, speaking of “any games whatsoever.” At the same time certain games have in particular been expressly decided to be within the Acts.
Horse-racing.
Thus horse-racing is specifically mentioned in the Act of Charles II., but not in that of Anne. However, in Blaxton v. Pye[20] and in Applegarth v. Colley,[21] this species of pastime was decided to be within the Statute of Anne, the “games” mentioned in which statute were the same as those mentioned in the Statute of Charles II. This subject will be treated more fully when we come to the Statute 8 & 9 Vict., c. 109. For a long time horse-racing was illegal, except under certain conditions[22], but was early in this reign legalised generally by 3 & 4 Vict., c. 35. But although the racing itself was made legal, that did not affect the provisions of the statute against wagering.
Wagers not legalised by 3 & 4 Vict., c. 35.
Thus in Bentinck v. Connop[23] a race was to be run for stakes 8of £50 for each colt, to which the plaintiff and defendant were subscribers, the defendant subscribing for three colts. The plaintiff won the race, but the defendant disputing the result refused to pay his stakes. Plaintiff sued him to recover the amount he should have paid by the agreement. It was admitted that the race itself was not illegal as it did not infringe the Statute of George II., but held that the fact of the race being legal did not make the contract enforceable—that the contract was within the Statute of Charles II., a contract to pay a sum of money exceeding £100 lost at horse-racing, and not paid down at the time; but that it would have been recoverable (? from the stakeholder) if the money had been deposited before the race. To the same effect was the decision in Shillito v. Theed,[24] that the Statute of George II. had not repealed the provisions of the earlier statutes as to wagering.
Dog matches[25] mentioned in the Statute of Charles II. include coursing matches as well as dog fights.
Cricket[26] is a game within the statute, so that a match for £20 was illegal, even though not finished in one day. A bond given to secure payment of a bet on a cricket match was void.
Foot-races,[27] even though against time. Of course whereever any game is declared illegal of itself no sum of money could be recovered as being won thereat. Thus in MacKinnell v. Robinson[28] it was held that money lent for the purpose of playing at hazard (which game, together with ace of hearts, pharaoh, and basset, were declared illegal by 12 Geo. II., c. 28) could not be recovered back, and that the statute applied to gaming at private as well as public tables.
Cock-fighting[29] seems to be illegal at Common Law, but no doubt it is a game within the statute which speaks of games generally.
Statute only applies to bet before or at time of race, &c.
It should be noted that the statute only speaks of betting on the sides of them that “do and shall” play.
9In Pugh v. Jenkins[30] it was held that these words did not apply to a wager between parties as to the accuracy of their information as to the results after the race was over.
The statute also left unaffected any wager in a game for a sum not over £10 and paid down at once, e.g., by deposit with a stakeholder.[31]
(2.) Another question which arose on these statutes was whether they avoided the contract itself or only the security. In Robinson v. Bland[32] Lord Mansfield distinctly lays it down that the contract might be good but the security void, and in the same case it is pointed out that whereas the Statute of Charles II. expressly avoids the contract, that of Anne deals only with the security, and that probably all reference to the contract in the latter statute was designedly omitted. In Macalister v. Haden[33] it was held that an action would lie on a wager for a sum under £10 on a race for over £50, races for under that sum being at that time illegal by the Statutes of George II. In Barjean v. Walmsley[34] money lent for betting purposes was held to be recoverable, as the statute applied to the security only, and not to the contract. However, the Court of Exchequer in the case of Applegarth v. Colley[35] seem to have inclined to a different view as to the effect of the statutes. It was argued by counsel in this case that the Statute of Anne had avoided the security only, and not the contract, but Baron Rolfe in delivering the judgment of the Court said that the Legislature had by the provisions of the Statute 5 & 6 William IV., c. 41, to which fuller reference will be made hereafter, virtually decided the question. “It is impossible,” he says, “to impute to the Legislature an intention so absurd as that the consideration should be good and capable of being enforced until some security is given for the amount, and then by the giving of the security the consideration should become bad.[36]
(3.) The Statute of Anne in making securities “void to 10all intents and purposes” worked great injustice in the case of innocent holders for value of bills and notes which had originally been given for gaming transactions. Thus, in Shillito v. Theed[37] the defendant had accepted a bill of exchange for £185, drawn on him for the payment of a wager on a legal horse-race. It was argued that as the plaintiff was a bonâ fide indorsee of the bill for value, it was not avoided in his hands. Tindal, C. J., held that as the statute avoided the security to all intents and purposes, not even a bonâ fide indorsee for value could sue. It would seem, however, that the statutes did not prevent an indorsee of a bill or note originally accepted or made in payment of a betting debt from suing the indorser on his indorsement, if such indorsement were in consideration of a valid debt. |Bower v. Brampton.| Thus in Bower v. Brampton[38] the plaintiff sued as indorsee of promissory notes given by defendant to one Church for money knowingly advanced to defendant to game with at dice, and Church indorsed them to the plaintiff for value without notice—Held that he could not sue the defendant as maker of the notes, as that would be a means of evading the Act; but that he could sue Church on his indorsement. |Edwards v. Dick.| Again, in Edwards v. Dick[39] the plaintiff sued as indorsee of a bill of exchange drawn by the defendant on the acceptor in payment of a betting debt, but indorsed by the defendant to the plaintiff in payment of a valid debt. Held, that although no action would lie against the acceptor either by the drawer, or any one else claiming through him, still the defendant could not set up as against the plaintiff the gaming consideration as between himself and the acceptor.