Part 3 — CHAPTER IV. GAMING HOUSES.
Reading edition
In Bacon’s Abridgment (title “Gaming”) it is stated “that by the Common Law the playing at cards, dice, etc., when innocently practised, and as a recreation the better to fit a person for business, is not at all unlawful; yet if a person be guilty of cheating, as by playing with false cards, dice, &c., he may be indicted for it at Common Law and fined and imprisoned. So, also a common player at hazard and using false dice may be indicted for it at Common Law and set in the pillory. An information against a person using the game of cock-fighting may be at Common Law. Also all common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood.” Instances are then given of cases in which the Courts have relieved against liabilities incurred by excessive gaming.
In Hawkins’ Pleas of the Crown, Book I., cap. 75, section 6, it is said: “all common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but because they draw together great numbers of disorderly persons.”
Blackstone (vol. iv.) who classifies gamblers as (1) those who are led into it by passion, (2) those who play from a greed of gain, (3) those who are drawn into it by their surrounding, states the legal objections to gambling as tending to promote idleness and debauchery among the lower classes and among the upper classes frequently attended with ruin and desolation.
150It is clear from this statement that the essence of illegality at Common Law was fraud and excess, and that all establishments which were kept for gaming purposes necessarily led to excess. This being so, it would seem that in point of principle, the Statutes 16 Charles II. and Anne and 18 Geo. II., of which mention has been made in Chapter I. of this work was only declaratory of the Common Law, seeing that they only dealt with fraudulent and excessive gaming, though no doubt they laid down particular tests which did not exist before, as to what should constitute excessive gaming.
Gaming houses illegal at Common Law.
In Reg. v. Rogiere[322] defendants were indicted “for that they did unlawfully keep and maintain a certain gaming house, and in the said common gaming house did cause and procure divers idle and ill-disposed persons to frequent and come to play together at a certain unlawful game called Rouge et Noir, for divers large and excessive sums of money.” The Court held that the keeping a house of this description was an offence at Common Law—Holroyd, J., adding that in his opinion it would have been sufficient merely to have alleged that the defendants kept a common gaming house, |25 Geo. II., c. 36, sec. 5.| The Statute 25 George II., c. 36, s. 5, confirmed this view of the Common Law; for after reciting the prevalence of disorderly houses, enacts, that to encourage prosecutions against persons keeping gaming houses, &c., it should be lawful for any constable, upon information from two inhabitants of the district, to take proceedings as therein specified. |2 & 3 Vict., c. 47, sec. 48.| Finally, in 2 & 3 Vict., c. 47, s. 48, we find an enactment that the Commissioners of Police in the Metropolis may authorise constables to enter houses suspected of being used as common gaming houses and arrest persons found therein. Provided that nothing should prevent the prosecution by indictment of any person having the care or management of any gaming house.
Both these statutes clearly regard the keeping a gaming house as an indictable offence; both prescribe certain methods of procedure; one even goes so far as expressly to 151preserve the Common Law remedy. It is, however, remarkable that in none of the writers or cases is any definition of a common gaming house attempted.
Test of a gaming house.
It seems, however, clear from the dicta of text writers just quoted and also from late authorities that any house where a number of people habitually congregate for gaming purposes where the play was excessive, either in the sense of being ruinous, or as tending to become a sole absorbing interest to the players and to distract them from the ordinary business of life, or where the gaming led to turbulence and disorder, such house, even if in form a mere ordinary social club, would be a common gaming house.
Gaming.
It seems now to be settled that to constitute gaming at all there must be either playing some unlawful game or playing a game, whether of skill or chance, for money. Reg. v. Ashton, 1 E. and B. 286, Dyson v. Mason, 22 Q. B. D. 351.
Houses for unlawful games.
There is also a series of statutes dealing with houses kept for playing unlawful games.[323]
Thus, 33 Henry VIII., c. 9, prohibited the keeping of any common house or place of dicing table or carding, or any other manner of game then prohibited or thereafter to be invented. 13 George II., c. 19, s. 9, inflicts penalties on any person keeping any office, table, or place for the games of passage or games with dice, except backgammon. 18 George II., c. 34, prohibits the keeping of any house, room, or playing roulet, or roly-poly, or any game with cards or dice already prohibited by law. It is stated in Hawkins (Pleas of the Crown, I. 725) that these statutes did not aim at occasional gaming for recreation at an inn which was not kept for the purpose. The games, too, were only unlawful sub modo, and were not prohibited in a man’s private grounds. Finally, there are the provisions against keeping houses for lotteries, the principal statute on this subject being 42 George III., c. 119, which, as has been 152shown above, makes it penal to keep any “office or place” for “Littlegoes.”
Unlawful games.
In some few cases particular games have been declared unlawful.
Thus the Statute 12 Richard II., c. 6, made tennis, football, quoits, dice, unlawful when played by artificers and labourers. But this Statute was repealed by Statute 21 Jas. I. Section 16, of 33 Henry VIII., prohibited the same games with the addition of cards, dice, talles, and bowls, to labourers and mariners or any serving man.
18 Geo. II., c. 34.
By 2 George II., c. 28, power is given to justices to commit all persons to prison found playing at any unlawful game.
12 George II., c. 28, s. 2, made the games of faro, ace of hearts, basket and hazard, illegal as lotteries, inflicted the same penalties as for setting up a lottery, and £50 on the players.
The Statutes 13 George II., c. 19, and 18 George II., c. 34, in adding other games to the list, |Players.| expressly imposed the same penalties on the players or adventurers in the games prohibited.[324] As has been suggested above, in dealing with these matters under the head of lotteries, to which they more properly belong, it is difficult to escape the conclusion that persons playing a friendly game of roulette in a private house or a club would be liable under these statutes, although by 46 George III., c. 148, proceedings must be taken in the name of the Attorney-General. From the recent decision in the case of Turpin v. Jenks,[325] that any which is a game of chance or of chance and skill combined is now an unlawful game, if not in the sense of being penal, at any rate so as to make it unlawful to keep a house for the purpose of such games. There would then seem to be three legal consequences of a game being unlawful;
(1) Where the statute inflicts a penalty;
(2) A house kept for the purpose is constructively a common gaming house or primâ facie evidence of it.
153(3) No prize to be awarded to the winner can be recovered, as we saw when we were discussing section 18 of 8 & 9 Vict., c. 109.
All these three subjects, keeping gaming houses, keeping houses for unlawful games, and playing at unlawful games, |8 & 9 Vict., c. 109.| were in some measure dealt with by the important Statute 8 & 9 Vict., c. 109, by s. 18 of which, it will be remembered, all wagers were declared void. This statute now forms the basis of the modern legislation on the subject of gaming houses.
Section 1 of this Act repeals so much of the Statute of Henry VIII. as declared any game of mere skill to be an unlawful game.[326]
With respect to gaming houses, &c., it deprives noblemen of the power of granting licenses to their servants for keeping a common gaming house or playing any unlawful games. With respect to the distinction which seemed to exist between keeping a common gaming house and keeping a house for unlawful games, it is clear that the two offences are by this statute brought under one category. |Sec. 2. Evidence of a gaming house.| For section 2, after reciting that doubts had been expressed whether houses open to subscribers only were common gaming houses, enacts that in default of other evidence proving any house to be a common gaming house, it shall be sufficient in support of any indictment or information to prove: (1) That the house or place is kept or used for playing therein any unlawful game. (2) That a bank is kept there by some of the players exclusively of the others. (3) That the chances of any game played therein are not alike favourable to all the players.
So that by this enactment a house kept or used for playing unlawful games is placed on the same footing as a common gaming house, and the owner or manager punishable accordingly.
By section 4 of the Act a penalty of £100 or six months’ imprisonment is inflicted on the owner or keeper of every common gaming house, or the person having the care or 154management thereof, and also every banker, croupier, and other person conducting the business of any common gaming house.
Sections 10 to 13 relate to the granting of billiard licenses—it having always been doubtful whether billiards were within the Statute of Henry VIII.
17 & 18 Vict., c. 38.
The Statute 17 & 18 Vict., c. 38, is the next statute on the subject of gaming houses, and in addition to some stringent provisions designed to prevent the Act 1845 being evaded or rendered a nullity, it introduces an offence termed “keeping a house for unlawful gaming,” for which a penalty of £500 is inflicted.
After reciting the powers given to justices out of the Metropolis, and to the Commissioners of Police within the Metropolitan District by 8 & 9 Vict., c. 109, and reciting that keepers of gaming houses contrive by fortifying the entrances to keep officers out of the houses until the instruments of gaming have been removed, provides:—
Section 1, that any person who shall obstruct any officer authorised by the Act 8 & 9 Vict., c. 109, to enter a gaming house, or who, by any bolt, bar, or chain, or other contrivance shall secure any external door or internal door of, or means of access to any house, room or place, so authorised to be entered, or shall by any other contrivance obstruct the entry authorised as aforesaid to, of any constable or officer, shall be liable to a penalty of £100, or in the discretion of the Court to be imprisoned with or without hard labour for six months.
Section 3 imposes a penalty of £50 or three months’ imprisonment, on any person found in gaming houses by officers entering as aforesaid, and refusing to give his name and address, or giving a false name and address.
Section 4. Any person being the owner or occupier of any house, room, or place, or having the use of the same, who shall open, keep or use the same for the purpose of unlawful gaming being carried on therein; and any person being the owner or occupier of any house or room, shall knowingly and wilfully permit the same to be opened, kept, 155or used by any other person for the purpose aforesaid, and any person having the care or management of, or in any manner assisting in conducting the business of any house, room or place kept or used for the purposes aforesaid, and any person who shall advance or furnish money for the purpose of gaming with persons resorting thereto, is liable to a penalty of £500 or twelve months’ imprisonment.
The following is a summary of the different offences respecting Gaming Homes:—
Offences under the Gaming House Acts.
(1.) Being the owner or keeper of a common gaming house or permitting a house to be so used.
(2.) Having the care or management or conducting the business of the same as to what comes under this provision.
Section 4 of the earlier Act expressly mentions the banker or croupier of such a house. It is presumed that the decision in Rex v. Cook,[327] which arose under the Betting House Act (see post), would apply to this section, viz., that the law only extends to persons taking a share in the illegal part of the business.
In Turpin v. Jenks the committee in whom, by the Rules of the Club, the management of the club was vested, were held liable as managers.
(3.) Obstructing officers authorised to enter a house under the provisions of section 3 or section 6 of 8 & 9 Vict., c. 109—penalty £100 or six months’ imprisonment, section 1 of 17 & 18 Vict., c. 38.
(4.) Any person found in a gaming house by officers entering under the above power, and giving a false name and address or refusing to give his name and address, is liable to a penalty of £50 or three months.
What constitutes a gaming house.
It is now necessary to inquire what constitutes a common gaming house within these Acts. It must, however, be remembered that persons may be brought within the above provisions concerning resisting officers and giving false names and addresses, even though it may turn out that a particular house be not eventually proved to come within the 156Acts. The officer’s justification for entry is the magistrate’s warrant, or in the metropolis the direction of the commissioners. So that the owners of a house could not justify any resistance to constables who enter by virtue of the Act, by proving that the house is not a gaming house.[328]
The question as to the evidence necessary to prove that a house is a gaming house, is partly answered by the statutes.
Evidence.
Thus, section 2 of 8 & 9 Vict., c. 109, after reciting that doubts had arisen whether houses open to subscribers only were common gaming houses, provides that in default of other evidence it shall be sufficient to prove—(1) That the house or place is kept or used for the purpose of playing therein any unlawful game. The subject, Unlawful Games, has been treated above, page 152. (2) That a bank is kept there by some of the players exclusively of the others. (3) That the chances of any game played therein are not alike favourable to all the players.
By section 8, where any cards, dice, balls, counters, tables, or other instruments of gaming used in playing any unlawful game shall be found in any house, room, or place suspected to be used for a common gaming house, and entered under a warrant or order issued under the provisions of this Act,[329] or about the persons of those who shall be found therein, it shall be evidence until the contrary appears, that such house, room or place is used as a common gaming house, and that the persons found therein were playing therein.
By 17 & 18 Vict., c. 38, s. 2, where any constable authorised under 8 & 9 Vict. to enter any house, &c., is wilfully prevented, or obstructed, or delayed in entering in the manner specified, or where any external or internal door of or access to any such house, &c., is found fitted or provided with any bolt, bar, chain, or other means of contrivance for the purpose of obstructing such officers, or for giving an alarm in case of such entry, or if such house is 157found provided with any means or contrivance for unlawful gaming, or for concealing, removing, or destroying any instrument of gaming, it shall be evidence, until the contrary be made to appear, that such house is used as a common gaming house.[330]
Private houses.
It must be remembered that a club or private house may equally be a common gaming house as a public place of resort. This is clear from the recitals of section 2 just quoted. The matter is also put beyond all doubt by the late case of Turpin v. Jenks,[331] where Mr. Justice Hawkins says that to hold otherwise would lead to evasion by placing a wide limit on the numbers.
It would appear, also, from the same case that a house or club might still be a common gaming house, if it were kept for the double purpose of social pursuits and gaming, if gaming were one of the objects for which the club was formed, or a house kept open. |Excessive gaming evidence.| It is also expressly laid down that excessive gaming is evidence that a house is a common gaming house. Mr. Justice Smith considering that excessive gaming was unlawful in itself, in spite of the repeal of the provisions of the Act of Anne, and section 8 of 18 George II.
Keeping a house for public billiards.
By section 11 of 8 & 9 Vict., c. 109, any person keeping a house or place for public billiards without a license, or without a victualler’s license for the house, and without the words “licensed for billiards” written outside, is liable to be proceeded against as the keeper of a common gaming house.
In section 4 of the Act of 1854 we find, if not a new offence, at any rate a new phraseology. |Keeping a house for unlawful gaming.| The offence there spoken of is not keeping a common gaming house but keeping a house “for unlawful gaming.” What unlawful gaming consists in is not defined: the Legislature evidently supposing that the terms had already received judicial interpretation. The Act of 1845 and the previous sections of the statutes seemed to refer to common gaming houses; 158and it will be remembered that section 2 of the earlier Act made the playing of any unlawful game in a house evidence that the house was a common gaming house. It will be seen that the term “unlawful gaming” has just received a construction which places it on the footing of a generalization; embracing the two species of offence, viz., playing an unlawful game and keeping a gambling house. The effect and meaning of the term “keeping a house for unlawful gaming,” has of late been thoroughly discussed in the case of Turpin v. Jenks and others,[332] commonly known as the Park Club case. Jenks, the defendant in the Court below, was the proprietor of a club house in Park Place, St. James’, managed by a committee of four members, by whom the other members were elected. The subscribers were 270 in number, each paying a yearly subscription. By the rules of the club hazard and games with dice were forbidden, and points at whist were not to exceed £1. All games were to be played for ready money. It was proved by the night steward of the club that a game called baccarat was played nightly among the members. That play commenced at 4.30 p.m., and continued until 7.30, and began again at 10.30 and lasted till 3 or even 8 a.m. Baccarat is a fair game among the players, the chances being equal; it is a game both of skill and chance, but chiefly of chance, and there are no advantages to be derived except from skill or luck. It is played with three packs of cards, and banks are formed varying in amount from £50 to £1,000, the whole of which might be lost or won in about twenty minutes. It was from these banks that the profits of the proprietor, calculated to amount to at least £10,000 a year, were derived. There were no other profits made in the club except the banks; cigars and wine were sold at cost price; the kitchen was carried on at a loss; the subscriptions were barely enough to meet the club expenses. The number of members was limited to 500. The proprietor, the members of the committee, and some of the players were summoned before 159Sir James Ingham, at the Bow Street Police Court[333] for keeping a house for unlawful gaming, and were all convicted in penalties of varying amounts.
These convictions were affirmed in the Divisional Court, except in the case of the players. Hawkins, J., in giving judgment, said that the real question was whether this house was kept for the purpose of unlawful gaming. There could be no question that gaming was the chief object of the club. The social arrangements were quite ancillary to the gaming purposes. The club rules against gambling, though admirable on the face of them, were really intended to conceal the real objects of the club. Even if it had been a bonâ fide social club, for the double purpose of society and gaming, it would still be within the statute as a house opened and kept for unlawful gaming, provided the gaming that took place were unlawful. The Statute 17 & 18 Vict., c. 38, is not directed against a person who merely keeps a gaming house; it imposes penalties on persons who open or keep a house for the purpose of unlawful gaming, and those who assist in it.
The question then really is whether the gaming for which the house was opened was unlawful.
The magistrate put the matter on too narrow a footing in treating it solely as a question whether the games themselves were unlawful; whereas the statute is directed against unlawful gaming, and not merely against unlawful games. Gaming may be unlawful (1) by reason of the place wherein it is played; (2) by reason of the unlawfulness of the game itself. Now, cards are not unlawful, either at Common Law or by statute;[334] but it is illegal to keep a common gaming house, and if cards were played therein that gaming would be unlawful.
Two questions therefore arise: (1) Was this a common gambling house? (2) Is baccarat an unlawful game?
160(1.) There could be no doubt that this was a common gaming house, and its practices were of the pernicious tendency alluded to by the different law writers and by the judges in Reg. v. Rogiere. |Club.| It is immaterial that the numbers of the club were limited; all gaming houses are; and if you allow a limit of 500, why not of 5,000? (2) As to the illegality of the game, the statutes, with very few exceptions, do not declare any games to be unlawful except when played by particular persons or in particular places. The earliest of the statutes was 33 Henry VIII., which prohibited any common house or alley being kept for the purpose of cards, or dicing, or any unlawful game then known or thereafter to be invented.[335] Some of the provisions of this statute, so far as they affected “games of skill,” were repealed. The test, therefore, seems to be whether a game be one purely of skill or not. Baccarat, therefore, being a game both of chance and skill, must be held to be an unlawful game.[336]
The Statutes of Anne and 18 George II., section 8, which laid down tests as to what was excessive gaming (by the former the loss or gain of £10 at one time or sitting, by the latter £10 at one time and £20 within twenty-four hours) were repealed by 8 & 9 Vict., c. 109, section 15, consequently excessive playing is no longer the test of illegality, but it may be some evidence of a house being used as a common gaming house. |The Committee.| His lordship held that the committee were liable for taking part in the management of the club.
The players.
The conviction against the players could not be sustained, though they might have been convicted of playing at unlawful games, but his lordship reserved this question. The words of the statute, “use the same for the purpose of unlawful gaming being carried on there,” only applies to a licensee to carry on the business.
A. L. Smith, J., delivered a judgment to the same effect, differing from Hawkins, J., only in one point, viz., as to 161excessiveness making a game unlawful. He considered that the dicta in Bacon and R. v. Rogiere were still good law, although the particular statutory limits of legality had been repealed.
It would seem that if the decision in this case were pushed to its utmost limits the law might be enforced in cases where games, though technically “unlawful,” were merely made the means of innocent recreation. It is not difficult to suppose cases in which a club, though it could not possibly be called a common gaming house, might still be, according to the strict letter of the law, a house kept for unlawful gaming, if a game, not being a game exclusively of skill—say, for example, whist—were one of the objects for which a club was formed. But this is only one out of many applications of the saying, “Summum jus, summa injuria.” The case of gaming houses presents no greater absurdity than the law of larceny, according to which the housemaid who abstracts a pin from her mistress’s pincushion is liable to the same punishment as a clerk who robs his master’s till. In the same way any person who gets up an ordinary sweepstakes for the Derby at a club brings himself in strictness within the Lottery Acts; but probably no magistrate would convict such person as a rogue and vagabond, as he might do under the statutes.
Players.
With respect to the players either in gaming houses or at unlawful games, the penal or restrictive provisions of the statutes are neither numerous nor stringent. 12 Rich. II., c. 6, forbad servants, labourers, apprentices, and artificers to play football or dice, but this was repealed by 21 James I., c. 28. 33 Henry VIII., c. 9, s. 16, forbad artificers and labourers to play at the tables, tennis, dice or bowls out of Christmas under a penalty of 20s. This section does not appear to have been totally repealed, except by 8 & 9 Vict., c. 109, s. 1, so far as games of skill are concerned.
The above provisions seem to have been directed against particular classes of persons. With respect to persons found playing in gaming houses, 33 Henry VIII., c. 9, s. 12, imposed a penalty of 6s. 8d. upon them, and s. 14 empowered 162justices to enter such houses to arrest the persons “there haunting, resorting, and playing,” and bind them over in recognisances with or without sureties. By 2 George II., c. 88, s. 9, this jurisdiction is extended to cases proved by two credible witnesses.
As to excessive gaming, the penal provisions contained in 16 Car. II., c. 7, 9 Anne, c. 14, and 18 George II., c. 34, s. 8, imposing penalties for winning over a specified sum within a given time, are repealed by 8 & 9 Vict., c. 109, s. 15. In Turpin v. Jenks,[337] it was held that the players could not be convicted for assisting in the management or business of the house (see ante p. 160.)
In some cases particular games have been prohibited under penalties; see ante at the commencement of the chapter on Lotteries, where these provisions are summarised. It will be observed that the particular game is always specified, there is no general prohibition against games of cards or chance; and the game is in each case prohibited as a lottery.
Lending money for gaming purposes.
It is only necessary to mention very shortly another offence constituted by section 4 of the same Act, viz., advancing or furnishing money for the purposes of such unlawful gaming, which is visited with the same penalty of £500. Of course the money so advanced cannot be recovered (see ante p. 16.)
Illegal partnerships.
With respect to partnership in gaming houses, it would seem to be clear on principle that one partner cannot sue another, nor can a principal sue an agent for an account of moneys won in an illegal adventure. The test adopted in Simpson v. Bloss[338] seems to make this clear, viz., does the plaintiff require any aid from the illegal bargain to establish his case?
In case of the partnership in a gaming house, the contract which would have to be proved contemplates the establishment of an illegal gaming house. The case of Sharpe v. Taylor[339] seems rather to conflict with this view. It was an action by one co-owner of a vessel against the other to 163recover a share of the profits earned by the vessel. The vessel was registered in the name of “A,” an American citizen, which seems to have been a breach either of the laws of the United States or of the English navigation laws, as carrying on trade between the two countries, without the real owners of the vessel being registered as such.
Lord Cottenham held that the plea of illegality of the adventure was no answer. Some of the dicta of his lordship’s judgment, pp. 817, 818, seem to countenance the view that a partner or an agent cannot set up illegality as a defence to the claim of a co-partner or principal, so long as the illegal part of the transaction is closed. Possibly, however, the decision can be supported on the ground that the object of the adventure was perfectly legal, viz., the importation of American produce in an English ship, though incidentally the provisions of the English navigation laws were not complied with.
It must be admitted that in Bridger v. Savage[340] the Court quoted the dicta of Lord Cottenham with approval concerning the plea of illegality, but that case cannot be considered an authority on the point, as the transaction had relation to betting, and not to any illegal contract. In Sykes v. Beadon[341] Jessel, M.R. refers to Lord Cottenham’s dicta with disapproval. At p. 195, “The notion that because a transaction which is illegal is closed, that therefore a Court of Equity is to interfere in dividing the proceeds of the illegal transaction, is not only opposed to principle but to authority; to authority in the well-known case of the highwaymen, where a robbery had been committed and one of the highwaymen unsuccessfully sued the other for a division of the proceeds of the robbery.” At p. 196: “It is not sufficient to say that the transaction is concluded as a reason for the interference of the Court. If that were the reason it would be lending the aid of the Court to assert the rights of the parties in carrying out and completing an illegal contract. 164If the contract is for the purpose of smuggling, that is an illegal contract, and the Court cannot maintain it, and the Court will not lend its aid to it at all. In my own practice a case occurred in which one of the partners in a gaming house sued the other partner for an account of profits. It did not come on for hearing, because the plaintiff thought better of it, and I am satisfied the bill could not have been maintained; still the assertion of the bill was that the gaming house had been closed, and the plaintiff asked for an account on that footing.”
The dicta of the Master of the Rolls have the support of a judgment of Lord Denman in Mortimer v. MacCallan,[342] where Simpson v. Bloss was quoted with approval. “This was in fact a partnership in the profits of an illegal adventure; if the plaintiff had received the whole the defendant could not have recovered his share.”
Illegality cannot be set up by third party.
At the same time a person who has received money payable under an illegal contract, not himself being a party to the contract, cannot plead the illegality. Tennant v. Elliott[343] and Russell v. Farmer[344] were both cases of this kind. This was the view taken of them by Jessel, M. R., in Sykes v. Beadon,[345] and by Crampton, J., in Nicholson v. Gooch.[346] Therefore if the partners in a gaming house kept a banking account, it is clear that the banker could be sued for the money.
Agent or Manager.
The same, it is submitted, applies to the case of an agent or manager of such an establishment: he certainly could not sue his principal for reimbursement or salary, Thacker v. Hardy,[347] so it is difficult to see why the principal should have a right to an account against his agent for profits. Nearly all cases where Sharp v. Taylor has been approved the real question did not arise, as they were in many cases like Johnson v. Lansley,[348] adventures in betting transactions which are not illegal: this matter is dealt with post p. 191.
Cheating at play.
Another offence besides keeping a gaming house dealt with by this statute is cheating at play. By section 17, 165“Every person who shall by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, or pastime, win from any other person to himself or any other or others any sum of money or valuable thing, shall be deemed guilty of obtaining such money, &c., by a false pretence, and punished accordingly.” In Regina v. O’Connor[349] it was held that where persons fraudulently won from another certain property by tossing with coins, that was a “pastime” within the Act if it was not a “game.”
As to conspiracy to defraud by the means mentioned in this section, see Regina v. Hudson.[350]
Games.
There can be no doubt that horse-racing is a “game” within the meaning of this section as it was within the Statute of Anne (sup. Cap. I., Part I). It would seem that the offence of winning is complete directly the event is declared in favour of the person who is guilty of the fraud, before the money is actually paid over.[351]
Privilege of Parliament.
By 18 Geo. II., c. 34, s. 7, no privilege of Parliament can be pleaded to a charge of keeping a gaming house.
BETTING HOUSES.
16 & 17 Vict., c. 119.
16 & 17 Vict., c. 119, after reciting that numerous establishments had been set up for betting houses and for taking money in advance on promises to pay on the events of horse-races. Section 1 enacts: “That no office, house, room, or other place shall be opened, kept, or used for the purpose of the owner, occupier, or keeper thereof, or any person using the same, or any person procured or employed by or acting for or on behalf of such owner, occupier, or keeper or person using the same, or if any person having the care or management or in any manner conducting the business thereof, betting with persons 166resorting thereto: or for the purpose of any money or valuable thing being received by or on behalf of such owner, occupier, keeper, or person as aforesaid as or for the consideration for any assurance, undertaking, promise, or agreement, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse-race or race, fight, game, sport, or exercise, or on the consideration for securing the payment or giving by some other person of any money or valuable thing on such events as aforesaid.” Every such house, &c., is declared to be a common nuisance.
Section 2. All such houses, &c., are declared common gaming houses within 8 & 9 Vict., c. 109.
Section 3. Any person who, being the owner or occupier of any office, house, room or other place, or a person using the same, shall open, keep or use the same for the purposes hereinbefore mentioned or either of them, or being the owner or occupier shall permit the same to be so used, and any person having the care or management of or in any manner assisting in conducting any such house or place kept for the purposes aforesaid, is liable to a penalty of £100 or six months’ imprisonment with or without hard labour.
Section 4. Receiving money on deposit for a bet.
By Section 4 any person being the owner or occupier of any office, house, room or place opened, kept or used for the purpose aforesaid or either of them, or any person acting on behalf of such owner or occupier, or any person having the care or management or in any manner assisting or conducting the business thereof, who shall receive directly or indirectly any money or valuable thing or a deposit on any bet on condition of paying any sum of money or other valuable thing on the happening of any event or contingency of or relating to a horse-race or any other race, or any fight, game, sport, or exercise, or as the consideration for any agreement to give any money or valuable thing on such event, and any person giving any acknowledgment, note or security on the receipt of any such deposit is liable to a penalty of £50 or three months’ imprisonment.
By Section 5 any money or valuable thing received by 167any such person as aforesaid as a deposit in any bet or as or for the consideration for any such assurance, &c., as aforesaid, shall be deemed to have been received to and for the use of the person from whom the same was received, and such money or valuable thing or the value thereof may be recovered accordingly. See ante p. 65, where this section is fully considered.
Exception in favour of a prize to the winner of a race.
Section 6. Nothing in this Act is to extend to any person receiving any money or valuable thing by way of stakes or deposit to be paid to the winner of any race, sport or exercise, or to the owner of any horse engaged in any race—an exception which seems very analogous to the proviso of section 18 of 8 & 9 Vict., c. 109, exempting “contributions to a prize” from the general law with respect to wagers, which has been discussed above.
Betting houses.
With respect to this statute against betting houses the following are the offences specified:—
Summary of offences.
(1.) Being the owner or occupier of a house or place kept or used (a) for the purpose of betting with persons resorting thereto (b) for the purpose of receiving money on deposit in respect of bets.
(2.) Using any such house for such purposes or either of them or permitting such user.
(3.) Having the care and management or assisting in the business of any such house.
The above persons are each liable to a penalty of £100 or six months’ imprisonment. They are, in addition, liable to be indicted for a nuisance, seeing that such houses are declared to be, by section 1, common nuisances; by section 2, gaming houses within 8 & 9 Vict., c. 109.
Receiving deposits.
(4.) By section 4, all the above persons (i.e., the owner or occupier of such house or place, or any person acting on his behalf, or any person having the care or management or assisting in conducting the business) are liable to a penalty of £50 or three months for receiving money or other valuable thing as a deposit on a bet[352] and by section 5 168the depositor may recover the money deposited as money paid to his use. |Exception in favour of prize.| But section 6 contains an exception in favour of any stakes or deposit to be paid to a winner of a race, or the owner of a horse that is running. It is not very easy to see what the practical effect is of providing that betting houses shall come within the meaning of common gaming houses in 8 & 9 Vict., c. 109; |? Effect of sec. 2.| the enactments in section 2 of the latter Act, are such as could not apply to a house merely kept for betting purposes, while 16 & 17 Vict. itself declares betting houses to be common nuisances, inflicts a specific penalty for keeping them, and contains provisions for entering and searching them.
(5.) Another species of offence prohibited by this Act is advertising houses or places as being opened or used for the particular kind of betting prohibited by the Act. This is by virtue of section 7, the provisions of which, as will appear more fully hereafter, are supplemented by a later statute, 37 Vict., c. 15.
Cases under the Betting House Act. Secs. 1 and 3.
The questions and cases which have arisen and been decided under the Act of 1853, may be grouped under the following heads:—
I. What is a “place”?
II. Persons liable.
III. What kind of betting is within the Act.
What is a “place”?
I. The meaning of the term “place,” which is used in the Acts directed against gaming and betting houses, as in fact it is in all the previous statutes on the subject of houses and “places” kept for the purposes of gaming or playing unlawful games, has undergone a great deal of discussion. It will be remembered that the Statute 4, George IV., c. 60, declared the term “place” as used in previous statutes, particularly the Lottery Acts, to mean “a place in or out of enclosed premises, whether on land or water.” Even if this statute cannot be regarded strictly as interpretative of all statutes, it may at any rate be a guide to the meaning of the term in other statutes.
169In Doggett v. Catterns[353] the action was brought to recover money deposited with the defendant on a bet, under s. 5 of the Act (given in full above). The defendant was in the habit of resorting to Hyde Park and keeping a betting table. Held, that though it was not necessary that a “place” should be under cover, still a spot in a public park which could not have an owner or occupier, would not come within the section. Per Pollock, C. B., on the ground that a place to be within the Act must be capable of having an owner or occupier. Per Bramwell, on the ground that it was not an ascertained place. Per Lush, J., in Eastwood v. Miller,[354] “the person there was not an occupier of the place, and he had no business to use it for that purpose.” In the course of the arguments, a remark was made by Bramwell, B., that the table occupied by the defendant could not be a common gaming house within section 2. This seems to suggest that nothing could be a place within the Act unless it could by a fair construction be considered a gaming house.
The case of Morley v. Greenhalge[355] was quoted in Lush, J., in Eastwood v. Miller,[356] as depending on the same principles as Doggett v. Catterns. It was held that a person could not be convicted of keeping, using, or acting in the management of any place for the purpose of cock-fighting, or of suffering or permitting it to be so used (contrary to 12 & 13 Vict., c. 92, section 3) who resorted to a quarry of which he was not the owner or occupier, for the purpose of aiding in a cock-fight. The owner of the quarry had nothing to do with the men being there, and they had no business there. It seems that in Eastwood v. Miller the Court took a different view of the ratio of the decision in Doggett v. Catterns to that taken by the judges in Bows v. Fenwick,[357] the former looked upon it as decided on the ground that it was a public place, and the 170defendant had no business to use it for betting purposes. The latter, rejecting the argument based on the fact that a man “might be ordered to move on,” distinguished Doggett v. Catterns, as will be seen, on the ground that no fixed place was used.
In Shaw v. Morley[358] there was a space railed off near the enclosure of a racecourse, about 44 yards by 2. It was let out to a tenant who paid rent for it, and by him divided into partitions; in each partition there was a wooden structure, 5 feet in height, fronting both ways, in which betting transactions were conducted, but which had no roof. |Betting out of towns.| It was contended for the defendant that these structures were not offices or places within the Act, which was directed against betting in towns, and the words “house” or “place” must be ejusdem generis with the words “house” or “room.” Held, that the Act was wide enough to cover betting out of towns; that this was a place and an office within the Acts; and that defendant was conducting a business within section 3. Per Kelly, C.B.: “It is no matter whether there is a roof or none, or whether the structure is moveable or fastened to the earth.” Per Martin, B.: “The structure described was both an office and a place. |Moveable offices.| What it most resembles is those moveable offices on wheels, in which merchants conduct their business of lading and unlading ships in the docks of Liverpool, and I have no doubt that such a structure would be an office or a place within the meaning of the Act. But this was more, it was a fixed place.”
This case decides three points—(1) That the Act is wide enough to reach betting in rural places; (2) That an uncovered as well as a covered spot may be a place within the Acts; (3) Any locomotive structure may also be a place. But the judgment of Grove, J., in Galloway v. Maries (post) should be compared with this.
An umbrella may be a “place.”
In Bows v. Fenwick[359] an umbrella was held to be within the Act. Defendant was on a racecourse, standing on a stool which was covered by a large umbrella capable of covering 171several persons, the stock being made in joints like that of a sweep’s brush, so as to be taken in pieces. On the umbrella were written the defendant’s name and address. There was also a card exhibited on which were the words, “We pay all bets first past the post.” The umbrella was kept up whether the weather was wet or dry. Numerous bets were made by the defendant. It was argued that this case was like Doggett v. Catterns, the place which defendant occupied being public, and that no erection could constitute a place within the Act from which defendant could be ordered to move on. The Court held that this was a place within the Act. They considered it more like Shaw v. Morley than Doggett v. Catterns. In the latter case there was no fixed place within the park at which defendant was stationed. Here, the card and the umbrella with the inscription clearly indicated a fixed and ascertained place where the defendant carried on a prohibited business.
Enclosures.
In Eastwood v. Miller[360] the defendant was in occupation of a large enclosure of more than three acres, where a pigeon-shooting match was going on. The Court held that the fact of its being a large enclosure did not affect the question; and that it was a place in spite of the fact that there was no structure erected therein.
But the case is more important on the question of “user.” The same remark also applies to Haigh v. Sheffield,[361] which was another case of an enclosure used as a cricket ground. It was again argued unsuccessfully, that “place” meant something of the same nature as “office” or “house.” But it may now be taken as settled that any kind of enclosure, whether covered or not, with or without an erection, may come within the Acts.
A bookmaker on a stool in the grand stand.
Finally, we come to the case of Galloway v. Maries,[362] in which the Court went a step further in curtailing the bookmaker’s liberty of action on a racecourse.
A race meeting was held in Four Oaks Park, belonging to a company, admission being by payment. Defendant and 172another man A obtained entrance to a railed enclosure called the ring, attached to the grand stand. A stood on a wooden box not attached to the ground, and both he and defendant offered to make bets with people about, A receiving the money, and defendant entering the bets in his book. They remained in one place the whole time. The Court held that this was “a place” within the Act. The justices had submitted for their consideration—
Questions submitted to Court.
(1.) Whether the enclosure was “a place.”
(2.) Whether the box was “a place.”
Grove, J., said the questions were not well framed. “The box, which is a moveable thing, cannot of itself be a place, and perhaps the enclosure might not of itself be a place within the Act. The real question is whether the facts in the case constituted a ‘place.’” After referring to the previous cases, continued: “I am inclined to think that the more important consideration is the fixity of the place, not, indeed, the absolute fixity as in the case of fixtures, but in the sense of the place being and remaining the same for a considerable time, long enough for the betting public to know where persons willing and offering to bet might be found. I do not say whether a person standing on a carriage step or in a circle where the turf was cut away would be within the Act, but I am far from saying he would not be so.”
Upon this case it may be observed—
(1.) That from the remarks of Grove, J., about the frame of the questions, the real issue is not whether a particular structure or spot is “a place” or not, but whether, coupled with all the facts, the use to which it has been put, &c., a place has not been constituted by the act of the person.
(2.) That the remark of Grove, J., as to the box not being a place as being moveable, is in contradiction to the views of Kelly, C.B., and Martin, B., in Shaw v. Morley (vide supra). In the latter case it was the certainty rather than the fixity of the place that was taken as the test.
(3.) It was the fact that the defendant occupied one spot the whole of the time which formed the grounds of the 173judgment. “There must be,” said Grove, J., at p. 211, “a fixed, ascertained place occupied or used so far permanently that people may know that there is a person who stands in a particular spot, indicated by a certain definite mark, with whom they may bet.” This case seems to show that in order for a person to be within the Act, it is not sufficient that he should be in an enclosure, say the grand stand, at a racecourse and betting with people there, unless he occupies one spot within the enclosure for the whole time. Snow v. Hill[363] the defendant was convicted by the magistrates of an offence under the Act, it having been proved that he was in a reserved part of the ground, and was walking about making bets with people therein. The Court held that the defendant was not within the Act. It is, however, difficult to say from the judgment in this case whether the decision was rested on the fact that he was walking about and did not occupy one spot, or whether sufficient user for the purpose of betting was not proved. The judgments in Whitehurst v. Fincher[364] and of Hawkins, J., in Reg. v. Preedie (see next page note) seem to suggest that the latter was the real ground of the case. It is submitted that, after the case of Eastwood v. Miller and Hague v. Sheffield, an enclosure of the kind is such a place within the Act as is capable of being used for the purpose of betting. In the two latter cases it is true the owners were convicted of permitting the places to be so used. They were not prosecutions of the men using them. It would seem, however, to be clear that the owner cannot be liable for permitting such user unless the user itself is illegal under the Act. The conclusion would therefore seem to be that the owner cannot be liable unless the person using the same is liable also, and in neither of these cases does it appear that fixed spots were occupied and it was the whole enclosure and not definite spots therein that were alleged to have been so used. The observations of Hawkins, J., Reg. v. Cook[365] seem to support this view. His lordship evidently considers 174the ordinary operations of betting men in such enclosures illegal, irrespective of their doing business on a stool or under an umbrella. “Here was ample evidence that the betting men were using these grounds for the purpose of betting with all persons resorting thereto, but no proceedings seem to have been taken against them.” But no doubt the place alleged to be used must be so far limited in area as not to be too large for the operations of the person using it. A man could not be said to use Hyde Park for betting purposes, though he might use a particular part of it.
In Reg. v. Preedie,[366] Hawkins, J., in a judgment delivered at the Central Criminal Court, which contains an elaborate survey of the statute and the cases thereon, thus expresses his views on this topic (after referring to Galloway v. Maries and Snow v. Hill): “I can hardly think that the learned judges intended to lay down as law that nothing would satisfy the term ‘place’ unless it was some particular spot in which a person stood, or which was appropriated by him exclusively for his own use.... The place must not be unlimited. On the contrary, I am of opinion that though it may be bounded by no definite line, it must nevertheless be limited in extent to the area occupied by the persons congregating together and resorting to it: so that any person carrying on his business there as a betting man might fairly and reasonably be said to be doing so in the immediate presence of those congregated together.” The Scotch case of Heuretty v. Hart[367] is quite in accord with this view; it was there held that a racecourse of about twenty acres in extent, though enclosed, could not of itself be a place.
In the above state of the authorities, bookmakers in the ring, say in the grand stand at a race meeting, must not assume that they are outside the Act however much their operations may be winked at by the authorities.
A room.
But where a room has been used no difficulty has been felt. Reg. v. Preedie (ubi sup.) was the case of the user of a 175tap room of a public house. It was held that the fact that the house or place was not primarily addicted to betting purposes was immaterial; that actual user of the place was sufficient.
Whitehurst v. Fincher[368] was a case of the user of a room, but the Court did not think there was any evidence of sufficient user for the illegal purpose, the person using it was not a bookmaker. In the late case of Hornsby v. Raggett[369] the Court held that user of the room for the illegal purpose was one of the offences specified in the Act, and it was not necessary that the person using it should confine himself to any one spot therein.
II. Persons liable.
Persons liable.
(1.) The owner, keeper or occupier (A), using the premises for the purpose of illegal betting, such as is described hereafter |Permitting.| (B), Permitting them to be so used; that is, if he connives at what he knows will result in illegal practices; as was said by Lord Blackburn in Haigh v. Sheffield.[370]... “It is clear that the magistrate came to the conclusion that the appellant knew that people resorted to the enclosure for the purpose of betting, and permitted foot-racing to go on and these betting men to come in, knowing the betting to be an ordinary consequence. The magistrate was right, therefore, in saying the appellant did permit the place to be used for betting, on the principle that a man must be taken impliedly to be answerable for what he knows to be the ordinary consequence of what he permits.”... At the same time, the case of Somerset v. Hart[371] shows that if actual knowledge be not proved, it must be shown that defendant wilfully shut his eyes, or connived at what was going on.
Person using.
(2.) Persons using the same for illegal betting.
Two questions arise here:
(a.) What amounts to “user”?
(b.) Who is the “person using.”
User.
176(a.) As to what amounts to user, the following cases seem to show that it is not necessary to show that a place is habitually used for illegal betting; and that one or two instances proved will be enough to enable the case to be decided as a question of fact by the magistrates or the jury.
A club.
Thus the case of Oldham v. Ramsden[372] goes to show how far a club at which betting is extensively practised, and in which there was a separate room kept for betting purposes, comes within the Act. Plaintiff was commission agent, and in the habit of making bets for other persons: he was also a member of a club at Manchester called “the Ellesmere,” which consisted of over 1,400 members. It had one room in which betting took place, and in the others were refreshments and cards. In the betting room the bets were only made between members, and no money was paid by way of deposit. The defendant, who was not a member, employed the plaintiff to back certain horses at certain races. The plaintiff did so by taking the odds against these horses with members of the club, and he informed the defendant of the bets having been so made. The horses lost, and plaintiff having paid the losses sought to recover from defendant. The defendant pleaded that the plaintiff paid the money to and it was received by the owner, occupier or keeper of a certain house, office, room or other place opened, kept and used for the purpose of money being received upon an undertaking to pay money on the event of horse-races by the owner, &c., as the plaintiff well knew, and that the money was paid by the plaintiff to such owner, &c., for the purposes of betting, or on a deposit on a bet. This plea was evidently framed in the provisions of section 1 of the Act.
The only point really decided was whether this club was a place used and kept by the owner or occupier for the purposes of betting.
For the plaintiff (supporting, of course, the legality of the establishment), it was argued that it was not shown that any 177money was paid to the owner or occupier in respect of these bets. The plaintiff was not owner; it was only one member betting with another.
For the defendant, on the other hand, that it was sufficient that money was received by “persons using the same,” which words did not mean persons acting on behalf of the proprietor. Also that the members were “occupiers” of the club within the Act, so that the receipt by one member from another in respect of a bet would bring the case within the Act.
One member gave evidence that he made a bet with plaintiff, and was paid by him at the club.
The Court held that there was no evidence that this was a place kept or used for the purposes of betting.
It will be observed that this was a very concrete decision and did not go far towards explaining what cases are and what cases are not within the Act.
Enclosures.
An enclosed ground may be “used for purposes of betting” if betting men are allowed to enter and bet indiscriminately with those resorting thereto. |Eastwood v. Miller.| Thus in Eastwood v. Miller[373] an officer went to the borough park ground at Dewsbury, which was (it was admitted) in the occupation of the defendant. A pigeon-shooting match was about to take place. There were two bookmakers on the ground shouting out 20 to 2 on the match. Two persons went up to one of the bookmakers and made a bet, receiving tickets in exchange. Defendant was within hearing of the bookmakers, but did not take any part or say anything. After the pigeon-shooting match a foot-race took place at which bets were made as before on the pigeon-shooting.
It was objected that there was no evidence that the grounds were kept or used for the purposes of betting, as only one bet was proved to have been made. But the Court held that there was sufficient evidence to justify the magistrates in coming to the conclusion that the premises were used for betting as well as pigeon-shooting, and that the two objects 178were combined. Defendant knew that persons going there would bet upon the matches, and they were allowed to bet there.
Haigh v. Sheffield
In Haigh v. Town Council of Sheffield[374] defendant occupied a house, and an enclosed piece of ground adjoining, used for cricket, foot-races, &c. Within the grounds, but outside the space reserved for the runners, and amongst the spectators, some fifteen or twenty persons, being clearly professional betters (George Trickett being one of them), stood on chairs and stools in different spots, with books in their hands, calling out the odds on the different runners and betting with different persons. Numerous bets were made by the visitors to the grounds, such persons each depositing one shilling and receiving a ticket. It was admitted that the defendant knew what was going on, and took no steps to prevent it. Upon the question whether defendant could be convicted of keeping or using the place for the purpose of betting, Blackburn, J., said: “The appellant keeps the grounds for both purposes (foot-racing and betting); and it is immaterial which purpose is ancillary to the other. Then it was said the place was not shown to have been ‘habitually’ used for betting: the word does not occur in the statutes; but I think, if it were necessary to show it, there was ample evidence from which the conclusion might be drawn, that it was habitually used; and, moreover, I am of opinion, though the magistrate would not probably have found that the place was ‘used’ for betting if only one instance of betting had been proved, still, if the occupier of the place, knowing that betting was going on in this way, though only once, allowed it to be carried on, he would be guilty of permitting the place to be used for betting within the statute.”
To the same effect is Foote v. Buttler,[375] where the landlord of an inn was proved only to have made occasional bets with other people, the Court held that there was sufficient evidence in which the magistrates might find, as a fact, that it was used as a betting house.
179On the other hand, in Whitehurst v. Fincher,[376] the defendant was proved on some few occasions to have gone to the bar of a public house, and to have made bets with persons there[376]; but it did not appear that he was a professional bookmaker. The Court held that the mere making of bets was not “user” within the Act, as it did not appear that he made a business of betting with persons who resorted there.
Person using.
(b.) As to who is included in the term “person using the same,” the question was raised in Oldham v. Ramsden,[377] as to whether it did not mean “using as owner or occupier.” Coleridge, C.J., rather suggested that that was so. The same view seems to have been argued in the case of Snow v. Hill,[378] and if correct would have the effect of limiting the application of the Act to persons who use a place by virtue of a tenancy or legal right. It is, however, submitted, that the wording of the statute precludes such a construction, which would reduce the words “person using the same” to mere surplusage[379]. It is significant that the words are omitted from the offence of “permitting, &c.,” and also from section 4, of which further mention will be made hereafter. But while it would seem to be clear that “the person using the same” may be a person who is a mere trespasser, it is equally clear that he must be a person who is using it for the illegal businesses specified: the “persons resorting thereto” for the purpose of betting are not within the Act, as was pointed out by A. L. Smith, J., in Snow v. Hill,[380] see, too, Jenks v. Turpin,[381] where the same learned judge put a like construction on somewhat similar words in the Gaming House Act, 17 & 18 Vict., c. 38, s. 4.
Manager.
(3.) The next person whom the statute makes liable is the manager or person assisting in the conduct of the illegal business.
In Slatter v. Bailey[382] the house was kept by T and his two sons for the purpose of betting on horse-races. One 180day T and one son sat at one table in a room receiving bets, and in another room defendant and another son of T sat at another table also receiving bets, the betting being called out aloud. On the defendant, when apprehended, were found numerous entries relating to past and future races. Held, that as defendant was proved to have been assisting the principal in the business, that was evidence that he was using the house, and was taking part in the management within the Act.
Club Committee.
It will be remembered that in Turpin v. Jenks,[383] the committee of a club was held liable as having the management of the business.
Reg. v. Cook.
In the late case of Reg. v. Cook,[384] before Hawkins and A. L. Smith, JJ., defendant was convicted by justices for that he unlawfully had the care and management of a certain cricket ground opened and kept for the purpose of persons betting thereon, on certain events and contingencies relating to a bicycle race. He was merely the manager employed by the directors of a company. At a bicycle race betting men were in the grounds among 20,000 people, and they took down bets, and the odds were called out in a loud voice. Cook acted as judge of the race, and stood about twenty yards off from where the betting went on. Boards were put up that no betting would be allowed. The appellant knew there was betting though not taking part in it, but he could not have wholly prevented it, though with the aid of some constables he might have to some extent done so.
Form of conviction.
Hawkins, J., said, in giving judgment, that the conviction itself disclosed no offence at law. Defendant was convicted of having had the care and management of a certain place used for the purpose of other persons betting therein. This would include ordinary betting, which was not interfered with by the statute, as his lordship in the course of his judgment explains. Dealing then with the facts proved in the case, his lordship said that they did not bring the case within the statute. Before the Act of 1853 there existed 181in London and elsewhere a number of offices and houses in which a regular betting business was carried on, sometimes conducted by the owners and occupiers, sometimes entrusted to the care and management of clerks and servants. The method of business was to keep long lists of races about to take place, with the current odds placarded in the office, and the owner or manager received ready money from all sorts of persons to abide the event. This was what the Legislature designed to prevent. So much for betting houses, which are declared to be a common nuisance.
Section 3, however, is directed against certain individuals—owners, occupiers, and persons using the premises for the purposes mentioned—persons permitting them to be so used, and managers of the premises so used. In this case the management by the defendant was perfectly lawful. The Act only contemplates a taking a part or share in the management of an unlawful part of the business. His lordship was far from saying that no offence was committed on the grounds. There were clearly men on the grounds for both of the illegal purposes of betting mentioned in section 1. If these men went down to this place for the purpose of betting with persons resorting thereto, or even if they limited their operations to receiving money on deposit, they could be made responsible; there is ample evidence that those men used the grounds for both these purposes. Defendant did nothing but manage the lawful part of the business; and the mere knowledge that betting of an illegal character did take place in some part of the grounds, shows no offence within the statute.
Mr. Justice A. L. Smith said that if the manager of the grounds were held liable, it would be difficult to see how any man employed to sweep the paths at Lillie Bridge could escape responsibility if betting were proved to go on there.
III. What kind of betting is within the Act?
Illegal betting.
The Act prohibits two kinds of transactions:—
(1.) Betting with persons resorting thereto;
(2.) Receiving money on deposit or ready money betting.
182(1.) With respect to the kind of betting that is within the Act considerable uncertainty has always been felt owing to the lack of decisions on the subject. In the above case of Haigh v. Sheffield it was observed by Lush, J., that the statute was intended to deal, not with the ordinary practice of betting or wagering, but with a more degenerate form of gambling, and one of a more demoralizing tendency. |Betting with persons resorting thereto.| At the same time his lordship does not explain exactly what kind of betting is affected by the statute. |Oldham v. Ramsden.| A case which really does throw some light on the matter is Oldham v. Ramsden,[385] though the grounds of the decision are not very clear. But it was there held that a club where the members habitually bet with one another is not within the Act.
It is very common to hear the question asked, why is Tattersall’s, &c., tolerated when the betting houses are suppressed? Two suggestions which have been made are worthy of notice:—
(a.) That the Act does not apply to bonâ fide clubs limited in numbers where the members are selected in the usual way. |Private clubs.| It would seem, however, that since the decision in Jenks v. Turpin, that a club or private house may be a common gaming house that this distinction is not sound, and that the suggestions in Crockford v. Maidenhead[386] must be considered as overrated.
(b.) The other and most general impression is that the Act does not apply except to ready money betting. The principal judicial dictum which gives colour to this view is that of Mr. Justice Blackburn in Haigh v. Sheffield,[387] where he expressly leaves the question open whether the place must not, to be within the Act, be kept for the purpose of the particular kind of betting mentioned in the preamble to the Act, viz., receiving money on deposit.[388] Anyhow, in this case, as in Bows v. Fenwick and Eastwood v. Miller, there was evidence of deposits having been paid. “It may well be,” said his lordship “that the Legislature intended to confine it to that kind 183of betting, leaving it to future legislation to extend the enactment if necessary.”
Act not confined to ready money betting.
It is, however, submitted that this is not the correct view of the matter. The Act speaks not only of receiving money on deposit but of “betting with persons resorting thereto.” The real meaning of these words is betting indiscriminately with all comers, that is to say, where in any place, house, or club one or a limited number of persons are the centre of every betting transaction that takes place, or, so to speak “hold the hat” against all the rest, that is a species of betting that the law prohibits, whether money passes at the time of making the bet or not. That this was the intention of the Act was clear from the speech of Sir Alexander Cockburn in bringing the Bill before the House of Commons.[389] |Tattersall’s not within the Act.| It was not, he said, intended to interfere with Tattersall’s and such like places, where persons met and bet amongst one another—where anyone is free to bet with anyone else.
It is remarkable that this question has never been practically dealt with in a Court of Law; nobody has ever yet tested the legality of Tattersall’s or similar clubs. There are, however, several dicta which give support to the view here suggested. Thus in Bows v. Fenwick, L.R., 9 C.P., at p. 344, Coleridge, C. J., observes: “It was an ascertained spot where the appellant carried on the business of betting with all persons who might resort there for that purpose.” Brett, J., at p. 346, says: “It was a fixed place selected and fixed upon by the appellant for persons who desired to deal with him.” In Galloway v. Maries, 8 Q.B.D., at p. 281, Grove, J., says: “There must be a fixed ascertained place occupied or used so far permanently that people may know that there is a person who stands in a particular spot indicated by a definite mark with whom they may bet;” and again, at p. 282: “The object of this Act was to prevent persons having fixed localities to which other persons may resort for the purpose of betting.” In Hornsby v. Raggett, 1891 2 Q.B.D., at p. 24, Smith, J., says: “The Act was intended to suppress the operations of those 184persons who keep what may be described as “banks” for the purpose of inducing other people to make bets with them.”[390] It seems a fact that in the clubs, the frequenters are all on the same footing. In the illegal houses they are divided into two classifications: (1) the persons who form the market for betting; (2) those who go there to bet with them.
A point may arise which has not yet been decided, whether the Act in speaking of betting relates only to betting on horse races, &c., or whether it also includes betting of every kind, such as betting on the price of stocks as has been pointed out in the chapter on the Stock Exchange.
Bucket shops.
Proceedings of this kind for what are called difference bargains are not infrequent in the “bucket shops”; does then the Act apply to these “bucket shops”[391] where difference bargains are the course of business?
The draftsmanship of the Act is curious, it speaks of two illegal purposes, thereby following the preamble: (1) betting with persons resorting thereto seemingly without limiting the betting to horse races; (2) receiving money on deposit on the event of horse races, &c., so that as far as ready money betting goes, the “bucket shops” are clearly not within the Act. It is submitted that in speaking of betting the Act cannot be held to limit it to betting on horse races, and that such limitation is confined to the case dealt with in the second clause of the section, viz., the ready money bet.
Betting by correspondence.
A further point arises on the wording of this very difficult statute within the first clause of the section, that is betting generally as distinguished from ready money betting. The words of the Act require that there should be: (a) Persons who resort thereto; (b) definite betting with them by the persons specified. Suppose, then, a bookmaker does business with his clients by correspondence, does he come within the 185Act? Can his correspondents be said to resort thereto? And the same question arises where betting is done by telephone. It is submitted that these persons cannot be said to resort thereto. To hold that they do, would be an artificial and strained construction of the Act. This clause of the section differs from the second relating to ready money betting, in which “persons resorting thereto” are not mentioned. It might well be that the framers of the Act desired, to put down, not betting generally, but establishments which form the nucleus of a crowd of disorderly persons, which in the language of Bacon’s Abridgment “cannot be but very inconvenient to the neighbourhood.” The prohibitions against ready money betting are more general as being productive of a greater amount of criminality amongst clerks and servants.
The true view seems to be that the bet must be made with the person as and when he physically resorts thereto. If a man sent his agent to the place no doubt the agent would resort thereto, but it would seem that this would not bring the bookmaker within the Act, unless the agent were authorized to conclude the bet. In the case of betting by correspondence, not only does the man send no agent there, but the bet is certainly not made on the premises.
It must be admitted that this view makes the prohibitions of the Betting House Act far less stringent than is usually supposed, and this is the more especially so since the decision in Davis v. Stephenson (this is dealt with post in the observations as to ready money betting) which seems to make it clear that by opening a banking account where persons can deposit money in respect of bets which they contemplate making, a bookmaker would not infringe the second clause of the section. Post p. 190.
Perhaps the greater part of the betting in this country is carried on through commission agents who belong to Tattersall’s or some other betting club, |Commission agents not within the Act.| and do commissions thereat for their clients. This transaction clearly does not come within the Act (that is, unless, as we shall show afterwards, he takes money in advance) as he does not 186bet himself. Of course, if he were really the principal, and did all the bets himself, he would be liable.
Coupons.
A question has more than once been suggested to the writer as to the legality of a practice now very common among the sporting papers of attaching coupons on which are to be written, say, the winners of any three coming events, a prize being awarded to the successful person or persons. Is this a bet? If it is, then probably the proprietors of the newspapers would lay themselves open to be prosecuted for keeping an office for the purpose of betting with persons resorting thereto. But it is submitted that such a transaction is not in the nature of a bet at all. Even supposing the purchaser of a newspaper get it at the office, the 1d. or 2d. he pays is to buy the paper. Of course the case might be different if a separate deposit was required when the coupon is sent in. But the difficulty is all the greater when, as is generally the case, the paper has been purchased at an ordinary shop. There is then no privity between the purchaser and the newspaper proprietors. We have above (p. 32 et seq.) suggested some of the characteristics of a wager: the coupon system does not seem to contain any of them.
The above observations have, since they were written, been confirmed by the decision of the Divisional Court in Caminada v. Hulton[392]. The scheme in this case was of the ordinary character. The defendant published “The Sporting Chronicle Handicap Book” as a weekly companion to a daily paper, “The Sporting Chronicle.” Attached to the book, which was a sort of racing guide, was a coupon, with the titles of six races printed on it. The book was sold for 1d., and the purchaser of the book was invited to fill up the coupon with the names of the horses he might select as the winners of the six races; and prizes of various gradations were offered to the competitors, according to the number of winners each might select. It was held that the 1d. being paid for the purchase of the book, the 187scheme was not a wager, but only a device for increasing the sale: nor was it a deposit of money on an agreement specified in section 3 of the Betting House Act.
This case leaves the point suggested above untouched, viz., whether if a separate payment were made in respect of each coupon sent in, it would not amount to a wager.
Competitions have in modern times assumed very various forms; but the racing coupon is the only one which has evoked a decision. Each must be judged according to its own scheme. Apart from fraud, the objections which could be taken to them would be as infringements of the Betting House Act in the Lottery Acts. In the earlier parts of this work some tests and criteria of a “wager” and a “lottery” are suggested. (See the Index under these headings.)
Ready money betting.
(2.) Receiving money on deposit. A house, &c., kept for this purpose is also illegal. No doubt all the cases cited above as to evidence of a house being kept for the purpose of the offence first mentioned in this section and of permitting it to be so used are applicable to this case. The following case shows that a man brings himself within the statute by doing business in this way by correspondence, even though he profess to be a mere agent for doing commissions. It has already been suggested that betting by correspondence is not within the first clause of the section.
In Wright v. Clarke[393] Wright was charged under section 3 of 16 & 17 Vict., c. 119, with keeping a house and office near Covent Garden for the purpose of receiving money on an undertaking to pay money on events and contingencies relative to horse races. Advertisements were inserted in the different papers to the effect that he would execute commissions on all races at the best prices, instructions to be sent to his offices in York Street; that he did not lay bets himself, but only acted as agent in the matter. “The 188money sent for investment will be taken into the best market, and laid out the best advantage for clients. All communications must be sent through post, and the replies can only be forwarded in the same manner. Commissions executed to any amount on receipt of the cash. All bets paid the day after the race (less 5 per cent. on winnings), provided the vouchers are sent at the same time.” Two or three police officers acting on instructions, gave instructions to Wright by post to back certain horses for some of the Ascot races, enclosing P.O.O.’s, and they received letters of acknowledgment from Wright, saying that their instructions had been carried out. In one case an officer received a cheque from Wright for winnings minus 5 per cent., Wright’s commission. A warrant being issued under section 11 of the Act, Wright and some clerks engaged in filling up papers and forms relating to his betting business were arrested. A large number of documents and books relating to betting were found upon the premises, and also 56,000 vouchers. There was in one of Wright’s books an entry of his transaction with one of the officers. Being convicted and fined £100, a special case was stated for the Court of Queen’s Bench.
For Wright it was contended: (1.) That he was not within the Act, seeing that persons did not resort to his office, the whole was conducted by correspondence; besides, he was simply an agent and not a principal. (2.) That the vouchers did not amount to an agreement to pay money on a bet, but only contained advice as to the mode of applying for payment. (3.) If they did amount to such an agreement the money deposited with him by P.O.O. was not the consideration for such agreement. The real consideration was the 5 per cent. of the winnings retained. (4.) That Wright could not be said to have used the house for the purpose of receiving the P.O.O.’s.
The Court held that Wright came within the second part of section 1. The office was kept open and there was a promise, express or implied, to pay the money in the event of a horse race, though nobody entered the house. There 189could be no doubt Wright was the principal and intended to be responsible for the payment of the bet. An implied promise would suffice to bring the case within the statute.
This case seems to make it clear that the receipt of money by way of deposit on bets even through the post is an unlawful purpose within the second clause of sections 1 and 3, which do not speak of receiving money from “persons resorting thereto.” It has already been suggested that these words in the first clause seem to exclude making bets on credit through the post. In the judgment of Hawkins, J., in Reg. v. Preedie (see note, p. 174), his lordship says: “That the Act is directed against carrying on the business of betting with, or receiving deposits from, persons resorting thereto.” It is with the greatest deference suggested, and for the reasons given above, that this is not quite accurate.
Taking cover in “bucket shops.”
It has been suggested above that “bucket shops” would be illegal under clause 1 of sections 1 and 3, if difference bargains which have been held to be wager contracts, are the course of business carried on therein. But as far as the second clause goes relating to ready money betting, it is clear that the bucket shops are not included, seeing that these clauses are confined to ready money betting on horse races, &c., consequently they would not be liable under these clauses for taking securities from their clients to secure the differences they may have to pay, commonly known as “cover.”
Receipt must be in house.
It has been held that in order to constitute a receipt within sections 1 and 3, the actual receipt of the money in respect of the bets must be in the house alleged to be used for the unlawful purpose. In Davis v. Stephenson[394] the bookmaker used an alley, not part of the licensed premises, of which the defendant was landlord, as a resort for persons to bet with him, where he received sums of money on deposit.
This money was afterwards taken into the defendant’s house, and the house was it appeared used for the purpose of 190settling. It was contended in support of the conviction that this amounted to a continuous receipt by the bookmaker, and that the defendant permitted the use of the tavern as a betting office. |Banker not liable.| The Court held that the actual receipt must be within the place alleged to be so used. It is clear from this case that a banker could without liability open an account for the receipt of deposits paid in by a bookmakers’ customers in respect of bets which they contemplated making with the bookmaker elsewhere, seeing that the bank would not be used for an illegal betting purpose by any of the persons specified. The effect of this decision on the latitude allowed to bookmakers has been pointed out above, p. 185.
Section 4.
Section 4 of the Act seems to aim at creating an offence different from either of those specified in sections 1 and 3, but the exact difference is not quite clear at first sight (the section is set out at p. 166). The offence is any one actual receipt or acknowledgment given in respect of a bet on a horse race, &c., by a person who keeps or manages a house or place used for either of the purposes specified in sections 1 and 3. And it does not seem to be necessary that the receipt should be in the house or place as it is under the two earlier sections. But, of course, to constitute such receipt an offence it must first be proved that there is a house or place used, &c.; section 5 giving a right to recover money deposited as in the last section mentioned has been fully dealt with at p. 65.
Stakeholder of race meeting not liable.
Section 6 provides that the Act shall not apply to any person receiving stakes to be awarded to the winner of a race, &c., so that the stakeholder of a race meeting is not under any liability. The provision was no doubt considered necessary seeing, as has been pointed out at p. 36, that a race for stakes is really a wagering and gaming agreement among the competitors.
Agent liable for taking ready-money.
Although, as we have seen, a person doing business as a commission agent, and executing such commissions on credit is not within the Act, yet it seems that if he take money in advance he will be liable. Section 1 provides 191that taking money as the consideration for securing the payment by another person on any future contingency is an illegal purpose. The text of the statute is given ante, p. 165.
Partnerships.
We have ante p. 162 ventured the opinion that in a partnership formed to carry on an illegal gaming house no action could be maintained by one partner against the rest for an account of profits. The same, of course, applies to illegal betting houses, but subject to this, that in a betting partnership it will be very material to see whether the firm are really doing an illegal business at all; if the business be simply that of betting at a lawful club, or if they do an ordinary commission agency business, there is nothing illegal in this, as we have just explained under the title of “illegal betting.”
Income Tax.
Income Tax must be paid on profits even if the business be illegal. Partridge v. Mallandaine, 18 Q. B. D., 276.
Stewards’ authority in grand stand.
Considering how the law stands with regard to the liability of owners or occupiers of enclosures, for allowing them to be used for the purpose of betting with the public resorting thereto, it may be as well to notice that by law they have somewhat arbitrary powers in the matter of allowing persons to remain therein, even after they have paid their money. Thus in Wood v. Leadbitter,[395] Lord Eglinton was steward of the Doncaster races. Plaintiff was in the grand stand, having obtained admission by ticket issued by the authority of Lord Eglinton. Defendant by his lordship’s direction ordered plaintiff to leave the grand stand. It was assumed for the purposes of the case that plaintiff had in no way misconducted himself. It was held that the right to come and remain on the land of another could only be granted by deed; otherwise it was a mere license revocable at any time without returning the money paid for the ticket.
Advertising betting houses.
The next kind of offence created by the statute consists in advertising any house or place as being used for betting purposes or for the exhibition of betting lists.
16 & 17 Vict., c. 119, sec. 7.
Section 7 enacts that “any person exhibiting, publishing, 192or causing to be exhibited or published, any placard, handbill, card, writing, sign or advertisement, that any house, office, room or place is kept or used for the purpose of making bets or wagers in manner aforesaid, or for the purpose of exhibiting lists for betting, or for the purpose of inducing any person to resort to such house, &c., for the purpose of making bets, or any person who on behalf of the owner or occupier of such house, &c., who shall invite other persons to resort thereto for the purpose of betting, shall be liable to a penalty of £50 or two months’ imprisonment.”
What persons are forbidden by this section to advertise is: (1) That a house or place is kept for the kind of betting mentioned in a former part of the Act, i.e., Section 1. So that to understand what kind of betting it is that must not be advertised, reference must be made to the cases that have been decided thereon. |Betting lists.| (2) People must not advertise their houses as exhibiting betting lists—that is, people may keep lists of races, current odds, &c., but not advertise the fact. This should be borne in mind by hotel and club proprietors, and all persons whose premises are furnished by means of the “tape” with the latest information as to races. Betting lists may be seized by officers entering premises by virtue of section 11 of 16 & 17 Vict., which speaks of lists and “all documents relating to betting,” and also they are expressly mentioned in section 12 of the same Act, which treats of the powers of the Metropolitan Police.
Act did not extend to Scotland.
By section 20, Scotland is expressly excluded from the provisions of the Act, consequently not only was that country inundated with members of the betting fraternity who could not carry on their business in this country, but seeing that betting houses in Scotland were not illegal, Section 7 did not make advertisements of such places illegal. Consequently, many of the daily papers made large sums by inserting such advertisements, which, no doubt, acted as a powerful incentive to certain members of the community to invest their money across the border. As Mr. Anderson observed, 193in bringing his Bill before the House of Commons,[396] that England had acted towards Scotland like the humane gardener towards his neighbour by sending over to him all his vermin. The Act which is known as Anderson’s Act, 37 Vict., c. 15, is described as “an Act to be construed as one with the principal Act of 1853 and to be cited together as the Betting Acts.”