Section 7 enacts that “any person exhibiting, publishing, or 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. [Sidenote: 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.

[Sidenote: 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, in 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.”

Section 20 of the principal Act is repealed, thus extending that Act to

Scotland.

By section 3, when any letter, telegram, circular, placard, handbill,

card or advertisement is sent, exhibited or published,

(1.) Whereby it is made to appear that any person, either in the United

Kingdom or elsewhere, will, on application, give information or advice

for the purpose of, or with respect to, any bet or wager on any such

event or contingency as is mentioned in the principal Act; or will make

on behalf of any other person any such bet or wager as is mentioned in

the principal Act; or

(2.) With intent to induce any person to apply to any house, office,

room or place, or to any person with the view of obtaining any

information or advice for the purpose of any such bet or wager, or with

respect to any such event or contingency as is mentioned in the

principal Act; or

(3.) Inviting any person to make or take any share in or in connection

with any such bet or wager.

Every person sending, exhibiting or publishing, or causing the same to

be sent, exhibited or published, shall be subject to the penalties

provided in section 7 of the principal Act with respect to offences

under that section.

[Sidenote: Tipsters’ business not prohibited.]

What the latter statute prohibits people doing is, not advertising

themselves as ready to give information or “tips” with respect to

ordinary betting transactions, but only with respect to betting carried

on in any office or place used for the purpose of illegal betting within

the principal Act.

Thus in _Cox_ v. _Andrews_[397] defendant issued advertisements in the

_Licensed Victuallers’ Gazette and Hotel Courier_ that Centaur would,

for half-a-crown in stamps, give information and advice with respect to

the probable winners of races in the ensuing week. Centaur was the

defendant’s regular correspondent with respect to horse-races and

information relating thereto. There was no address given at which

persons desiring such information should apply. _Held_, that the

advertisement, contemplated in 37 Vict., c. 15, referred to bets made in

any office, house or place as referred to in the principal Act, and not

to advice with respect to ordinary betting; the Act was to be read with

the principal Act, and the only kind of betting prohibited by the latter

was that specified in section 1. Of course, this being the purport of

the statute, all the cases cited above as to what is a “place,” etc.,

and particularly as to the kind of betting prohibited by the Statute 16

& 17 Vict., c. 119, apply to the construction of the supplementary as

well as of the principal Act. [Sidenote: Betting clubs.] It is clear,

therefore, that the ordinary betting clubs so long as they themselves

are not within the Act, may advertise for members. [Sidenote: Agents.]

So also the ordinary commission agent, who does business at these clubs,

may advertise for clients.

[Sidenote: Foreign houses.]

Now that the bookmaker, having first been driven out of England has also

been banished from Scotland, he seems from the advertisements in the

papers to have betaken himself to Boulogne. Considering that any house

he may set up there is not within the Act, it follows that these

advertisements are perfectly legal.

[Sidenote: Betting and Loans (Infants) Act.]

We have now to notice an Act which has recently been passed to prohibit

the sending of advertisements or invitations to bet to persons under

age. The Betting and Loans (Infants) Act, 55 Vict., c. 4, s. 1,

provides: (1) “If any one for the purpose of earning commission, reward,

or other profit, sends or causes to be sent to a person whom he knows to

be an infant, any circular, notice, advertisement, letters, telegram or

other document which invites, or may reasonably be implied to invite,

the person receiving it to make any bet or wager, or to enter into or

take any share or interest in any betting or wagering transaction, or to

apply to any person or at any place with a view to obtaining information

or advice for the purpose of any bet or wager, or for information as to

any race, fight, game, sport, or other contingency upon which betting or

wagering is usually carried on, he shall be guilty of a

misdemeanour....” The penalties imposed are, if convicted on indictment,

three months’ imprisonment, with or without hard labour, and a fine of

£100; on summary conviction, one month and £20 fine.

Sub-section 2. “If any such circular, notice, advertisement, letter,

telegram or other document, as in this section mentioned, names or

refers to any one as a person to whom any payment may be made, or from

whom information may be obtained for the purpose of or in relation to

betting or wagering, the person so named or referred to shall be deemed

to have sent, or caused to be sent, such document as aforesaid, unless

he proves that he had not consented to be so named, and that he was not

in any way party to, and was wholly ignorant of, the sending of such

document.”

By section 3: If any such circular, &c., is sent “to any person at any

university, college, school, or other place of education, and such

person is an infant, the person sending it, or causing it to be sent,

shall be deemed to have known that such person was an infant, unless he

proves that he had reasonable grounds for believing such person to be of

full age.”

By section 6: “In any proceeding against any person under this Act, such

person and his wife, or husband, as the case may be, may, if such person

thinks fit, be called, sworn, examined, and cross-examined as an

ordinary witness in the case.” Scotland is not excluded from the Act.

[Sidenote: Welshing.]

The oft-disputed question of whether “welshing” is a penal offence has

been set at rest by _Reg._ v. _Buckmaster_.[398] It was there held that

it amounted to larceny by trick, on the ground that there being no

intention on the prisoner’s part when he took the prosecutor’s money of

paying the prosecutor if he won his bet, there was no real contract

between the two which could pass the property in the money paid by the

prosecutor to the prisoner.

PROCEDURE.

[Sidenote: Procedure.]

We now come to treat of the procedure whereby the laws against gaming

and betting houses can be enforced. It will be observed that it differs

in some important respects from the ordinary procedure in criminal

cases, in being more drastic and to a great extent less considerate to

the liberty of the subject owing to the great difficulty of detecting

the offences and the facility with which the law might be evaded if

ordinary forms had to be observed.

The procedure is slightly different in the case of gaming and betting

houses, so they must be treated separately.

[Sidenote: Gaming houses.]

I. As to gaming houses, by 25 George II., c. 36, ss. 5 and 6, it was

provided that if any two inhabitants of a parish should give notice to a

constable of any person keeping a gaming house, the constable should

take such persons before a justice of the peace; that the justice

should, on the sworn information of such persons, bind them over to

prosecute at the Assizes or Sessions, and issue a warrant for the arrest

of the person accused and bind him over to answer any indictment that

might be found against him. It seems that the section leaves the

magistrate no discretion as to granting a warrant[399]; but as it only

applies to proceedings preliminary to indictments it is, in practice,

superseded by the procedure prescribed in the more modern Statutes. This

procedure is different according as the house is situated in the

Metropolis or out of that district. [Sidenote: In the Metropolis.] In

the Metropolis, by 2 & 3 Vict. c. 47, section 48, power was given to the

Commissioners of the Police Force, on the report of any superintendent,

that there were good grounds for believing that any house within the

district was used as a common gaming house, and on two witnesses making

oath before a magistrate, to empower the superintendent and other

constables to enter the house, arrest all persons found therein,[400]

and destroy all tables, instruments of gaming, money, and securities for

money. By 8 & 9 Vict., c. 109, section 6, the Commissioners are invested

with the same powers, except that the necessity of two witnesses making

oath before a magistrate is dispensed with; and the power to seize (and

not destroy) instruments of gaming is given.

This latter section does not empower Metropolitan magistrates to issue

such warrant as the Betting House Act does.

[Sidenote: In Ireland.]

By section 24 of the latter Act, Metropolis in Ireland means Dublin.

By section 7, special power is conferred on such superintendent or

constables to search the whole house where he shall suspect there are

instruments of gaming concealed, and any person found therein,[400] and

to seize all tables and instruments of gaming which he shall so find.

By section 8, magistrates before whom persons are brought, having been

arrested in a gaming house, may order all such tables and instruments of

gaming to be destroyed.

[Sidenote: Out of the Metropolis.]

In the case of houses out of the Metropolis, justices of the peace may,

on information on oath that there is reason to suspect any house is used

as a gaming house, issue a warrant in the form given in the schedule to

the Act to empower officers to enter such house by force, and arrest all

persons found therein. This section does not empower constables to seize

or destroy instruments of gaming. [Sidenote: Form of warrant.] An

important point to notice about the form of the warrant is that it is

directed only against a particular house, the individuals who may be

arrested need not be named or described. This is an important departure

from ordinary procedure, as generally a warrant for an arrest is bad if

the name of the person to be arrested or some description of him do not

appear on the face of the warrant, as was decided in the “general

warrant” cases in George III.’s reign.

By section 5 it is provided that it shall not be necessary in support of

any information, for keeping a gaming house, to prove that persons found

playing therein were playing for money or stakes.[401]

The power of ordering the destruction of instruments of gaming conferred

by section 8 seems to apply out of the Metropolis. The words are

“warrant or order.”

It does not appear that police magistrates in the Metropolis have the

power of issuing warrants in the form above described, as the section

expressly excludes the metropolitan district.

N.B.—In any questions arising under this Act, reference should be made

to the cases which are noted under the corresponding portions of the

Betting House Act, as the wording of the two statutes is in many cases

similar.

[Sidenote: Evidence.]

There are also important provisions in 17 & 18 Vict., c. 38, with

respect to the power of a magistrate to compel witnesses to give

evidence, under section 5 and section 6. All persons apprehended under

the powers contained in section 3 and section 6 of 8 & 9 Vict., c. 109,

may be required to give evidence touching any unlawful gambling or

obstruction of officers in the house, notwithstanding that such evidence

may tend to criminate the witness. Such person refusing to be sworn may

be dealt with as any ordinary witness so refusing. But every such person

who has made full discovery of all the facts he knows is entitled to a

certificate from the justices which frees him from criminal proceedings

in respect of matters on which he has been examined.

[Sidenote: Levying and application of penalties.]

By section 7 penalties and costs may be levied by distress, and by

section 8 half the penalty is to be paid in aid of the poor-rate of the

parish in which the offence is committed, and half to the person laying

the information.

In _Wray_ v. _Ellis_[402] a question arose as to whether this section

applied to penalties paid in the Metropolis. By the Statute 2 & 3 Vict.,

c. 71, section 47, it is provided that all fines paid in London Police

Courts shall be paid to the Receiver of Police. The question was whether

the enactment was superseded by section 8 of 17 & 18 Vict., c. 38. The

Court held that it was not; and that in the latter section an implied

exception was contained in the case of penalties paid in the Metropolis,

and that therefore the Receiver was entitled.

[Sidenote: Neglect to prosecute.]

By section 9, if the person who shall have laid the information neglects

to prosecute, the justices may authorise some other person to proceed.

[Sidenote: Appeal.]

Any person convicted summarily under this Act may appeal to the Quarter

Sessions on entering into recognisances and finding sureties within 48

hours of his conviction.

[Sidenote: No certiorari.]

By section 11 no information under the Act is to be removed by

certiorari into the Queen’s Bench.

[Sidenote: Action against officers.]

In the case of actions brought against officers for any trespass or

other wrongful proceeding done or committed in the execution of the Act,

it is provided (section 13) that no action shall be brought if

sufficient tender of amends shall have been made before action brought,

and by section 14 no action or other proceeding shall be brought, unless

one month’s notice in writing shall have been given to the intended

defendant, nor unless the action shall have been commenced within three

months of the act or omission complained of.

In _Blake_ v. _Beach_[403] it was contended for the defendant that by

section 14 a month’s notice of the information ought to have been given

to him, but this point was abandoned by Counsel as untenable, when the

case came before the Divisional Court; and was also said by the Court to

have been “founded on an obvious mistake!”

[Sidenote: Vexatious indictments.]

Keeping a gambling house is one of the offences mentioned in the

Vexatious Indictments Act, 22 & 23 Vict., c. 17, which by section 1

provides that no bill of indictment for any of the offences named shall

be presented to the Grand Jury unless the prosecutor or person

preferring such indictment has been bound by recognisance to prosecute

or give evidence; though, by section 2, if the justices decline to

commit for trial, prosecutors may require them to bind him over to

prosecute.

[Sidenote: Betting houses.]

The procedure in the case of betting houses is to a certain extent

similar to that in the case of gaming houses, except that the power of

magistrates to issue a warrant in the form already described is not

limited to places out of the metropolitan district.

By section 11 of 16 & 17 Vict., c. 119, justices of the peace are

empowered, on information on oath that any house suspected of being used

as a betting house, [Sidenote: Search warrant.] to issue a warrant

authorising the forcible entry into any such house, and the arrest and

searching of all persons found therein, and also the seizure of all

lists and cards and other documents relating to racing or betting found

in such house. Such warrant may be in the form given in the schedule to

8 & 9 Vict., c. 109.

In _Anderson_ v. _Hume_[404] it was decided (1) that this section

empowers the search of licensed houses as well as others, although they

are subject in some respects to special regulations; (2) that the power

to arrest persons found therein is not confined to persons found engaged

in gaming.

In _Blake_ v. _Beach_[405] a warrant was issued under section 11 of this

Act for the search of a house suspected, as was stated in the warrant,

of being used as a common gaming house within 8 & 9 Vict., c. 109. Under

this warrant defendant and other persons found therein were arrested.

Defendant was afterwards charged under section 3 of 16 & 17 Vict., c.

119, with keeping a betting house. Ample evidence was given that

defendant was manager of the place, and that it was used for betting

purposes, but this charge was made without any fresh information being

laid against defendant. [Sidenote: Whether fresh information necessary.]

It was objected on his behalf that as the information on which the

warrant was granted was laid under 8 & 9 Vict., c. 109, a fresh

information ought to have been issued before he could be charged under

the Statute of 16 & 17 Vict., c. 119.

The Court differed, FIELD, J., holding that no fresh information was

necessary. In this case a specific charge was made against the accused

sufficient to give the magistrates jurisdiction. The information

provided for by section 11 took away the necessity of any further

information. Further, according to the current of modern authority, when

a man is before a magistrate who has jurisdiction as to time and place,

no further information is necessary before bringing any fresh charge

against him, though it might be proper to adjourn the hearing.

The rest of the Court, CLEASBY and GROVE, JJ., differed. In the ordinary

course a charge is preceded by information or summons. In this case the

defendant was brought up on a charge different from that contained in

the information. In a penal matter the charge ought to be comprised

within the information. There is nothing in section 11 to dispense with

the regular information or summons; it only enables persons to be

brought before the magistrates so as to know who is to be charged. The

conviction was therefore quashed.[406]

The information may be laid before one justice only.[407]

Where an information under the Betting House Act charged defendant with

having kept a house for betting purposes on the 5th October “and divers

other days.” The evidence proved the offence alleged on the 8th of

November only. _Held_, that under section 9 of 11 & 12 Vict., c. 113,

the variance was immaterial.[408]

For an instance in which a warrant was, under this section, issued in

the Metropolis, see _Clarke_ v. _Wright_ (quoted above).

[Sidenote: Powers of Commissioners of Police in Metropolis.]

Section 12 confers the same powers on the Commissioners of Police in the

Metropolis, on the report in writing of any superintendent, to authorise

such superintendent, with other constables, to enter suspected betting

houses, as is contained in the Gaming House Act; to take into custody

all persons found therein,[409] and to seize all lists, cards, or other

documents relating to racing or betting.

The Act also contains provisions similar to those of the Gaming House

Act, with respect to appeals to Quarter Sessions, certiorari, and

limitations of action (see above, p. 199).

GAMING IN LICENSED PREMISES.

[Sidenote: Gaming.]

By 35 and 36 Vict., c 94, if any licensed person (1) suffers any gaming

or any unlawful game to be carried on on his premises, (2) opens, uses,

or suffers his house to be opened or used in contravention of 16 & 17

Vict., c. 119, he is liable for the first offence to a penalty of £10,

and for every subsequent offence to a penalty of £20; the conviction to

be endorsed on such person’s license.

[Sidenote: I. Gaming. Knowledge of owner necessary.]

The following cases go to show how far actual or constructive knowledge

on the part of the owner of the premises is necessary.

In _Redgate_ v. _Haynes_,[410] defendant was the landlady of an hotel at

Epsom; witnesses proved that three men and a horse-trainer, a jockey,

and an inhabitant of Newmarket, were playing cards for money in the

sitting room from 11 p.m. The defendant retired to bed, leaving the hall

porter in charge of the house. The latter closed the door and retired to

his chair in the parlour, at the farthest end of the house. The usual

place for such chair was in the hall, and it was his duty to wait upon

his guests in the sitting room. From the Judgment delivered the

following rules may be extracted: (1) The defendant would not be liable

merely for the fact of gaming unless she knew of it or connived at it.

(2) In her absence she was responsible for the conduct of those she left

in charge. (3) The fact of the porter moving his chair out of the way

was some evidence that he suffered or connived at what was going on, but

the judges declined to say whether they would have drawn the same

conclusion.

In _Bosley_ v. _Davies_[411] there was evidence that persons were

playing at cards in the house, but none that the manageress or the

attendants knew that gaming was on. One of the players deposed that all

the brandies and sodas were served before the playing commenced. The

case was sent back to the magistrates with an intimation of opinion from

the Court that some knowledge, actual or constructive, or connivance on

the part of the owner was necessary.

In _Somerset_ v. _Hart_,[412] defendant was keeper of licensed premises.

On market day when the inn was very full, two men began gambling with a

mug and three nuts. It was proved that the potman knew of gambling, but

took no steps to prevent it, nor did he communicate it to the landlord,

who was engaged serving customers at the bar. COLERIDGE, C.J., in giving

judgment, distinguished the case of _Redgate_ v. _Haynes_,[413] on the

ground that there the magistrates thought there was evidence of

connivance. _Mullins_ v. _Collins_ was a case of serving a constable

with liquor while on duty; but there the liquor was served by a woman

who was probably defendant’s wife, to whom the management of the

business had been entrusted. Here the magistrates find that there was no

evidence that defendant had actual knowledge of the gaming, or that the

potman communicated it to him, or that he wilfully shut his eyes to what

was going on. All the cases show that there must be something in the

nature of connivance. See, too, _ante_ p. 175.

The case of _Bond_ v. _Evans_,[414] carried the matter somewhat further.

The defendant, a licensed victualler, had a skittle alley attached to

his premises, the management of which he entrusted to a servant. It was

proved that cards were played for money in the alley, and that the

servant was cognisant of the fact, though the defendant was not. It was

held that, the landlord of licensed premises “suffered” gaming to be

carried on when there was connivance at it, either on his own part or on

the part of any servant in charge of that part of the house where gaming

went on.

[Sidenote: What is gaming within the Act?]

To be within the act there must be either gaming for money or playing

some unlawful game. Thus in _Reg._ v. _Ashton_[415] (a case within 9

Geo. IV., c. 61, section 21) it was held that playing at dominoes, but

not for money, was lawful, dominoes not being an unlawful game.

In _Danford_ v. _Taylor_,[416] the game of ten-pins, the losers standing

beer all round, was held to be within the Act.

In _Bew_ v. _Harston_,[417] a licensed person allowed to be played on

his premises a game called “puff and dart,” the object of which is to

hit a mark on a target with a small dart blown through a tube. The

players each contributed 2d. as entrance money, the total sum so

contributed being applied to the purchase of a rabbit as a prize for the

winners. _Held_ that he was rightly convicted of gaming on licensed

premises. Cockburn, C.J., doubted whether the term “gaming” did not

apply to games of chance alone.

Except for the doubts thus expressed in the last case, the authorities

seemed to be all one way, that playing for money, even at a game

exclusively of skill, is “gaming”: this view has since been adopted in

_Dyson_ v. _Mason_.[418]

[Sidenote: Card playing.]

In _Patten_ v. _Rymer_[419] an innkeeper, whose license forbade him to

suffer gaming on his premises, was held liable under 9 George IV., c.

61, section 21, for playing cards for money with his friends.

Although 37 & 38 Vict., c. 49, permits licensed persons to serve liquors

to private friends after hours, there is nothing in that act which

justifies him in allowing the friends in his house to play cards for

money.[420] Section 25 of the Act of 1872, which imposes a penalty on

persons found in licensed premises during prohibited hours for the

purpose of being served with liquor, does not extend to cases where they

are only playing cards or other games.[421]

[Sidenote: Unlawful games.]

As to what are unlawful games, see _ante_ p. 152.

[Sidenote: Money lent by publican for gaming cannot be recovered.]

In _Foot_ v. _Baker_[422] it was held that money lent by a publican for

the purpose of gaming in his premises contrary to his license cannot be

recovered.

[Sidenote: II. Using the house for betting.]

Reference should be made to the notes on “What is Illegal Betting” in

the chapter on Betting Houses. It would seem, therefore, that there is

no objection to a publican keeping a room in his house for other people

to bet in, in the same way as betting is practised at the Clubs; but he

must not bet with his customers himself, nor allow anyone else to use

the house for the purpose of betting with all comers.

In _Sim_ v. _Page_[423] it was held that licensed victuallers are still

liable to be proceeded against, under the Gaming and Betting House Acts,

notwithstanding this Statute see section 59.

BETTING IN A PUBLIC PLACE.

By 5 George IV., c. 83, section 4, any person playing or betting in any

street, road, highway or other open or public place, at or with any

table or instrument of gaming, at any game or pretended game of chance,

shall be deemed a rogue and vagabond.

[Sidenote: Instruments of gaming.]

In _Watson_ v. _Martin_[424] it was held that tossing for halfpence was

not within the statute. To supplement this defect in the statute, by 31

& 32 Vict., c. 52, section 3, the words “coin, card, token or other

article used as an instrument or means of such wagering or gaming,” are

added so as to include pitch and toss. But in _Hirst_ v.

_Molesbury_[425] it was held that the latter statute did not apply to a

deposit of money by a person in the hands of another, in a public place,

to abide the event of a wager.

In _Tollett_ v. _Thomas_,[426] defendant was on a race course, and had a

machine called a pari-mutuel. This machine had on it numbers, beside

each of which were three holes, and behind these holes were figures

which by a mechanical contrivance were made to shift on the turning of a

key, so that any number from 0 to 999 would be exhibited behind these

holes. On the top of the machine was the word “total,” and beside it

were holes in which could be exhibited in similar manner figures

shifting on the turn of a key. The defendant appropriated each of these

numbers to designate a horse about to run in a race. Any person who

wished to bet on a particular horse, deposited with the appellants

half-a-crown, and received a ticket with the number of the horse. The

defendants then by a turn of the key altered the figures, increasing the

sum indicated alongside that number by one, and the same turn of the key

increased the figure beside “total” by one.

After the race had been run, the holders of tickets with the numbers of

the winning horse had divided among them all the half-crowns deposited,

less 10 per cent. which defendants retained as their profit.

_Held_ (1) That this was an instrument of wagering or gaming within the

Act. (2) That as the amount to be won depended on an event other than

the issue of the race (_i.e._, it varied according to the number of

persons who backed a particular horse), it was a game of chance. It was

like a lottery, which (_semble_ at p. 514) would be a game of chance

within the act.

It was left open whether a horse-race was a game of chance (but see

_post_ as to games of chance).

[Sidenote: What is a public place?]

An _omnibus_[427] is a public place at any rate for some purposes.

In _Turnbull_ v. _Appleton_,[428] colliers and their families were

allowed by a company to use a large field of 30 acres for recreation.

Strangers were also allowed to go and play there. On one occasion

defendant played pitch and toss in the field. _Held_ that this field was

a place to which the public had access.

It has lately been decided that _a railway carriage_ is a public place

while in the course of a journey.[429]

So, too, _a race course_. See _Tollett_ v. _Thomas_ (_ubi sup._).

[Sidenote: 36 & 37 Vict., c. 94.]

The Statute 36 & 37 Vict., c. 94, repeals the Act of 1868 and provides

“that any person playing or betting, by way of wagering or gaming, in

any street, road, highway or other open and public place, or in any open

place to which they have or are permitted to have access, at or with any

table or instrument of gaming, or any coin, card, token or other article

used as an instrument or means of such wagering or gaming, at any game

or pretended game of chance, shall be deemed a rogue and vagabond”

within the meaning of the Act of George IV., and punished under the

provisions of that Act (_i.e._, three months’ imprisonment), or may be

fined 40s. for a first offence and £5 for a subsequent offence.

It would seem that this statute is wide enough to take in a case like

_Doggett_ v. _Catterns_[430]—where it will be remembered a man had a

table in Hyde Park for betting purposes.

[Sidenote: Games of chance.]

We have now to consider what really is comprehended in the term “game of

chance” as used in this Statute. The writers are not aware that the

exact term has been used in any other statute, though the converse

expression, “game of skill,” is to be found in the Act of 1845. It is,

however, to be found in various cases such as _Turpin_ v. _Jenks_[431]

and _Dyson_ v. _Mason_[432] (see Table of Cases). In _Tollett_ v.

_Thomas_ (_ubi sup._) that a pari-mutuel was an instrument of wagering

on a game of chance, although the owner was not betting himself with the

depositors on the ground, that the amount which each depositor could win

was a matter of uncertainty, until it was finally ascertained how many

in the total had backed such depositor’s horse; the result being

entirely independent of his skill.

It is submitted that the true test of whether or not a game is a game of

chance, including in the term a game partially of skill and partially of

chance is, whether according to the rules or scheme of the game any

material part of or step in the game is determined by chance. But the

term “chance” must be used in a more definite and limited sense than

mere uncertainty, or even the possibility of uneven luck. The idea of

chance seems to be the same as that of lot, _e.g._, the dealing of

cards, the throwing of dice, or the spinning of a teetotum. Uncertainty

is the essence of every game even if of skill; and frequently inequality

of luck is an important factor. Thus in billiards or pool every stroke

is an effort of skill both as to the stroke itself and the placing of

the balls for next stroke; and probably (with ordinary players) few

games of skill are more influenced by luck; yet in _Dyson_ v. _Mason_,

billiards was assumed on all sides to be a game of skill. Again, the

design and scheme of a horse-race is a contest involving a trial of the

speed and staying power of the horses, and the skill and nerve of the

jockeys; though doubtless attended by uncertainties which need no

enlargement. Still, what was assumed in _Dyson_ v. _Mason_ supports the

view that mere uncertainty is not tantamount to chance; and if so, the

question which was reserved in _Tollett_ v. _Thomas_, viz.: whether or

not horse-racing was a game of chance must be answered in the negative.

[Sidenote: In Metropolis.]

30 & 31 Vict., c. 134, section 24, provides that three or more persons

assembled in the streets in the Metropolis for betting purposes may be

fined £5 as for an obstruction.

APPENDIX A.

_Higginson_ v. _Simpson_, _ante_ p. 36.—The author begs, with great

respect, to suggest that this decision is erroneous, and that the case

is really within the principal of _Beeston_ v. _Beeston_, which, it will

be remembered, decides that a partner or agent is liable to account to

his co-partner or principal for winnings received on a betting

transaction. The real nature of the agreement in the present case seems

to have been as follows:—The defendant, accepting the plaintiff’s “tip,”

backed the horse “Regal” at 25 to 1, laying, say £4 on him, so that if

the horse won, his winnings would be £100, of which he was to account

for £50 to plaintiff, while if the horse lost, plaintiff was to pay him

£2, _i.e._, share the loss in the same proportion as the profit. The

author submits that this arrangement amounted to a partnership in a

betting transaction and nothing else—it was a contract to share profit

and loss. Suppose plaintiff had prepaid the £2 to defendant with

instructions to back the horse on their joint account, plaintiff to

receive £50 as his share of the winnings, would not that have been

almost on all-fours with _Beeston_ v. _Beeston_? Does, then, the fact of

there having been no prepayment make any difference? or the fact that

here the plaintiff was to win or lose a fixed sum, instead of a certain

proportion of the profits or losses? The real distinction would seem to

be between an independent wager between A and B and an agreement between

A and B with respect to profits and losses to be won or incurred by a

wager with a third party. The transaction in this case seems to come

under the latter category; it was not like a “hedging” operation on the

part of the defendant; it was not as if defendant had first made a wager

with a third party backing the horse, and then made a separate wager

with plaintiff betting against the horse, taking advantage, perhaps, of

a change in the odds to cover his risks. The agreement clearly had

reference to a betting transaction to be effected with a third party,

and the plaintiff’s right to the £50 was clearly conditional on the bet

being made, on the horse winning, and, it would even appear, on the

defendant’s being paid what he won; plaintiff was to receive £50 _out of

the winnings_. It was not an unconditional, personal agreement to pay on

a future event.

No doubt in form it was very like a wager between plaintiff and

defendant, plaintiff backing the horse for £2 at 25 to 1; but the cases

cited in the text seem fully to establish the principle, which was

indeed accepted by the Court in the present case, that it is the

substance and not the form that is material.

N.B.—There is a misprint in the “Law Report,” 2 C. P. D. 76, which would

give a totally different character to the transaction. The report reads,

the “_Defendant_ was to pay £2 to the plaintiff.” It is clear from the

arguments and the judgment that it was the plaintiff who was to pay £2

to the defendant.

APPENDIX B.

RULES ON BETTING.[433]

Although the Stewards of the Jockey Club take no cognisance of betting,

yet, for the convenience of such persons as are interested in the

subject, we subjoin a copy of the Rules as re-arranged by the Committee

of the Subscription Rooms, at Tattersall’s, on February 8th, 1886.

1. The Committee of Tattersall’s and the Committee of the Newmarket

Rooms have authority to settle all questions relating to bets, to

adjudicate on all cases of default, and, _at their discretion_, to

report defaulters and persons guilty of any malpractice to the Jockey

Club. In the following rules the words “the Committee” refer to either

of those bodies.

2. In all bets there must be a possibility to win when the bet is made:

“you cannot win when you cannot lose.”

[On September 25th, 1890, the following addition was made to this rule].

“No betting ‘first past the post’ will be recognised by either of the

Committees.”

For betting purposes, the time of starting for any race shall be decided

in accordance with Rule 38 of the Rules of Racing.

3. All bets are P. P.—play or pay—with the following exceptions—1. When

the nominator dies before the decision of the race. 2. When the race is

postponed to a future week, or the conditions are altered after the bets

are made. 3. Bets on matches. 4. Bets made after the running numbers are

telegraphed about a horse that is not subsequently under the starter’s

orders.

4. If no objection is lodged within seven days of the race, exclusive of

the day on which the race was won, bets go to the horse placed first by

the Judge, and the settling, except in cases of fraud, shall not be

disturbed. If an objection is made within the said time, bets go with

stakes.

5. Bets made on one horse against another, or that one horse beats

another, are determined if either of them _should win_: unless agreed by

the parties, it is not indispensable that both horses should start. Bets

made between horses 1, 2, 3 are determined by the places assigned by the

Judge—it is not necessary to say _the best_ of 1, 2, 3.

6. If odds are laid in running or immediately after the horses pass the

post, and a dead heat is the result: and in “double events,” if _either_

is decided in the backer’s favour, and the other results in a dead heat,

the money betted must be put together and equally divided. As, according

to racing custom, matches which result in a dead heat are void, bets are

void also.

7. If a bet is made on one of the horses that runs a dead heat against a

beaten horse, and the owners agree to divide, he who backed the horse

that ran the dead heat wins half his bet. If odds are laid on one horse

against another 1, 2, 3, and they run a dead heat for either place, the

money betted must be put together and equally divided.

8. The person who lays the odds has the right to choose a horse or the

field; when a person has chosen a horse, the field is what starts

against him. If odds are laid without mentioning the horse before the

race is over, the bet must be determined by the state of the odds at the

time of making it.

9. Bets made after a race that the winner will be disqualified, stand,

even if no objection be made.

10. Any bet made from signal or indication when the race has been

determined shall be considered fraudulent and void.

11. All bets on matches and private sweepstakes depending between any

two horses shall be void if those horses subsequently become the

property of the same person, or of his avowed confederate.

12. Double event bets are determined when the first is lost.

13. Bets made on horses winning any number of races within the year

shall be understood to mean between the 1st of January and the 31st of

December.

14. Money given to have a bet laid shall not be returned, though the

race be not run.

15. Confirmed bets cannot be declared off except by mutual consent, but

on any allegation of fraud or corrupt practice, the Committee will

investigate the case and may declare the bet void. Either of the bettors

may demand stakes to be made on proving to the satisfaction of the

Committee that he has just cause for doing so. _If ordered_, the bets

must be covered or sufficient security offered, and a person refusing to

cover shall be expelled the Subscription Room at Newmarket and at

Tattersall’s.

16. The Committee will not _necessarily_ enforce the settlement of a

compromised account. Before giving a decision they may require the books

of the debtor and a statement of his accounts to be submitted to them;

but they have authority, in all such cases, to order the account to be

settled if they think a reasonable offer is made.

17. If a debtor does not satisfy the claims of his creditors within

twelve months, he shall not be entitled to receive any debts which may

be due to him; but if he does so within the prescribed time, viz., “one

year,” _i.e._, 365 days, inclusive of the day when the money was won,

the Committee will support his just claims to receive payment from his

debtors.

18. If any extraordinary occasion should arise, or in cases of notorious

and palpable fraud, any of the before-mentioned rules may be suspended

by the Committee.

19. The Stewards of races have no authority _ex officio_ to take

cognisance of any disputes or claims with respect to bets.

APPENDIX C.

Since the observations on page 34 were written, the case of Carlill v.

The Smoke Ball Company (see daily papers, 5th July, 1892) has been

decided by Hawkins, J. The case can only be very shortly noticed here.

The contract was that the Defendants would, if any person after having

used their smoke ball for a given time should contract an attack of

influenza, pay such persons £100. The Defendants contended that this was

a wager contract. If tested by the light of the criteria suggested at

page 34, it would seem to be far removed from a wager. The consideration

received by the Defendants was the exploitation and experimenting by the

Plaintiff of their smoke ball; and it was only after that had become an

accomplished fact—_a certainty_—that they came under their conditional

liability to the Plaintiffs. The learned Judge enters into a discussion

of the essentials of a wager contract, on which the following

observations may with deference be suggested:—(1) The backing or

expressing of an opinion is not essential, as suggested at page 34. The

man who is party to a wager selects a chance: an unknown or uncertain

event in which he is to receive payment.

(2) A wager involves the selection of more than one event, otherwise the

essential of mutuality is lost. Each party selects the event, positive

or negative, on which he is to be paid by the other. A backs a horse

with B; B of course may select the negative event that A’s horse will

not win, or what is the ordinary contract of “the layer,” he merely

backs the field, _i.e._, all the other horses but A’s horse. It is quite

possible in the latter case that both events may happen, _e.g._, A’s

horse may run a dead heat with one of the field. The rule here is that

each party whose horse runs a dead heat wins half his stake, or in other

words the money is put together and evenly divided. If A backed the

horse at evens the bet is practically off; if he backed it at 5 to 1 he

wins £2. A walk over of course counts as a win to the party whose horse

walks over.

INDEX.

ADDED MONEY,

Recoverable, 73, 74

ADVERTISING

Betting House, illegal, 191

Betting Lists, do., _ibid._

Betting Clubs legal, 194

Commission business, _ibid._

Foreign houses, _ibid._

Information as to betting, 193

To Induce betting, _ibid._

To Infant, penal, 194

Lotteries (_see_ LOTTERY)

AGENT

Authority of,

to pay bets if lost, when implied, 45

to bet according to custom, 53

to make bets in his own name, 51

irrevocable after bets made, 47

personally responsible for bets, 51

_secus_, where bet made in principal’s name, 51

indemnity,

none in respect of wagers, 53

nor of illegal transaction, 164

winnings,

must account for to principal, 40

not liable for default in making bet, 43

estoppel from denying agency, 44

business (_see_ COMMISSION AGENT)

(_see_ BROKER, LOTTERY)

ART UNIONS

Exempt from Lottery Laws, 147

AUSTRALIAN LAW

of wagering similar to English, 79, note

BANK (_see_ GAMING HOUSE)

BANKER

cannot set up illegality of customer’s business, 164

not liable for receiving deposits on bets, 190

BANKRUPTCY

of principal determines agent’s authority, 61

of depositor, determines authority of stakeholder, _ibid._

BANK SHARES (_see_ LEEMAN’S ACT)

BARNARD’S ACT, 87

BAZAARS,

_semble_, within Lottery Act, 141

BETTING (_see_ WAGER-CONTRACT, BETTING HOUSE, AGENT: PUBLIC PLACE,

METROPOLIS)

BETTING HOUSE (_see_ PERSONS RESORTING THERETO)

a common nuisance, 165

advertising, 191

illegal betting within Act, 181, _et seq._

by correspondence, legal, 184

betting clubs, 183 (_see_ TATTERSALLS)

Deposits (_see_ DEPOSIT)

keeping house for receiving, 187

receiving, 190

acknowledgment of, _ibid._

commission agent taking (_see_ COMMISSION AGENT)

stakeholder, not liable, 167, 190

inviting persons to resort to, 192, _et seq._

manager of (_see_ MANAGER)

owner, occupier permitting user, 175

user of, 176, _et seq._

Warrant (_see_ PROCEDURE, PERSONS FOUND THEREIN)

BETTING LISTS

advertising illegal, 191

exhibiting not illegal, _ibid._

seizable when, 181, 200

BILL OF EXCHANGE (for betting debt), 11 (_see_ CHEQUE)

given for illegal consideration, 11 (_see_ ILLEGAL CONSIDERATION)

_secus_, if bet not on game or pastime, 11

or if bet made after race finished, 11

cheque for under £10 prepaid, 14

for gaming debt incurred abroad, 14

acceptor

liable to holder in due course, 19

paying indorsee can recover from

drawer or payee, 26

ditto with interest, 26

payment may be by cheque, 26

injunction against negotiation, 26

cheque, bill includes, 27

defect in title, meaning of, 19

gaming debt is, 19

shifts burden of proof on to holder, 19

notice, 21

overdue bill subject to, 19

void consideration is not, 20

drawer of, liable to acceptor who has paid, 26

indorsee for value

can sue acceptor when, 19

ditto indorser, 24

burden of proof on to show bonâ fides, 19

notice to, of illegality, 21

BILLIARDS (_see_ LICENSED PREMISES)

a lawful game, 85

a game of skill, 85, 208

BONDS

are within 5 & 6 Wm. IV., c. 41, 28

BREEDER

_query_, his right to recover prize in Breeders’ Stakes, 76

BROKER (_see_ STOCK EXCHANGE)

differences paid on client’s behalf, can recover, 97

on sale of bank shares, his position, 117 _et seq._

BUCKET SHOP

transactions in, sometimes wagers, 103

deposit in, right to recover, 66

query within Betting House Act, 184, 189

CARRYING OVER (_see_ STOCK EXCHANGE)

CHEATING AT PLAY, 165

CHEQUE (_see_ BILL OF EXCHANGE)

included in “bill” in 5 & 6 Win. IV., c. 41, 28

amounts to “payment” within do. 27, _ibid._

drawer of, for gaming debt, can recover from payee, 26

for gaming debt abroad, 14

CLUB

for gaming purposes illegal, 160

for betting purposes when legal, 183 (_see_ TATTERSALL’S)

committee of, liable as managers, 155, 160, 179

lottery in, illegal (_see_ LOTTERY), 132

COCK-FIGHTING, 85

COMMISSION AGENT (_see_ Agent)

business of lawful, 185

advertising lawful, 194

_secus_ if he takes money in advance, 190

cannot recover commission, 53

partnership in, 191

COMPANY (_see_ PARTNERSHIP LOTTERY)

COMPETITIONS, 186

CONFLICT OF LAWS,

general rules as to, 66 _et seq._

gaming debts contracted abroad not recoverable here, 68

money lent for gaming abroad, 16

CONSPIRACY (_see_ CHEATING)

CONSTRUCTION OF SPORTING CONTRACT,

steward’s decision generally final, 80

by Court, _ibid._

parol evidence admissible to explain, _ibid._

stamp necessary, 81

Newmarket Meeting, meaning of, 80

gentleman rider, do., _ibid._

evidence of usage, _ibid._

Rules of racing and betting evidence, 53, 81

CONTINUATIONS (_see_ STOCK EXCHANGE)

CONTRIBUTIONS TO PRIZE (_see_ WINNER, SUBSCRIPTION STAKES), 73

COUPONS, legal, 186

COVER (_see_ DEPOSIT)

CUP, meaning of, 74

_query_, within “prize,” 74

DEATH

of principal or depositor revokes authority, 60

of agent or stakeholder, _ibid._

of one party, bet off, _ibid._

of competitor in race,

_semble_, stakes recoverable by executors (_see_ EXECUTOR)

of nominator of horse avoids entry, 38

DEED (_see_ ILLEGAL CONSIDERATION)

DEPOSIT (_see_ SUBSCRIPTION TO PRIZE)

on bet when recoverable, 64

with keeper of Betting House, 65

in bucket shop transaction, right to recover, 66

_query_, illegal, 189

receiving, and keeping house for receiving (_see_ BETTING HOUSE

COMMISSION AGENT), 187, 190

race, to abide, equivalent to a wager, 36

subscription to prize, not the test of, 69, _et seq._

under £10, not within Statute of Anne and Wm. IV., 12

with stakeholder (_see_ STAKEHOLDER)

does not pass under gift of “money,” 60

in lotteries, recovery of, 143

DIFFERENCES (_see_ STOCK EXCHANGE, BROKER)

DIVIDENDS

sale of future, not void as wager, 102

forbidden on Stock Exchange, 103

distribution by lot, not a lottery, 138

ENTRANCE MONEY (_see_ SUBSCRIPTION TO PRIZE)

when it goes with stakes, 61, 74

when recoverable by executors, _ibid._

EXCESSIVE GAMING

under old statute, 6

_query_, illegal now, 160, 162

evidence of gaming house, _ibid._

EXECUTOR,

must not pay betting debts of testator, 38, 64,

nor sums deposited on bets, _ibid._, 64,

_secus_, where testator kept a Betting House, 65

of betting agent, _semble_, most account to principal for winnings,

41

must not pay stakes or forfeits, 38

_semble_, can recover stakes, deposited by testator, 61

do. entrance money when, _ibid._

FISH PONDS,

_semble_, illegal as lotteries, 142

FOREIGN LAWS (_see_ CONFLICT OF LAWS)

FORFEIT,

not enforceable, 38, 63

(_see_ PENALTY, EXECUTOR)

FRAUD (_see_ CHEATING)

GAMES

within statute of Anne, 7

“lawful games” within 8 & 9 Vict., c. 109, 82

unlawful games, _ibid._, 129, 152, 160

players at unlawful, 152, 161

cheating at, 165

of chance, what is, 207

in public place, _ibid._, 205

GAMING (_see_ GAMING HOUSE, UNLAWFUL GAMING, LOTTERY, WAGER-CONTRACT,

LICENSED PREMISES, PUBLIC PLACE, INSTRUMENTS OF GAMING, EXCESSIVE

GAMING, BETTING HOUSE)

GAMING HOUSE (_see_ BETTING HOUSE, LICENSED PREMISES)

illegal at common law, 148 _et seq._

a common nuisance, _ibid._

Evidence of, 156

bank kept by some of players, _ibid._

excessive gaming, 157, 160

unequal chances of game, 156

unlawful game, playing of, _ibid._

obstruction of officers entering under powers of Act, 154, 156

instruments of gaming, _ibid._

contrivances,

for destroying instruments, _ibid._

for barring doors or access, _ibid._

for giving alarm, _ibid._

MANAGER (_see_ MANAGER)

liability of, 155, 160

includes banker or croupier, _ibid._

obstructing or assaulting officers entering, 154

giving false names and addresses, _ibid._

Partnership in (_see_ PARTNERSHIP)

(_see_ PERSONS FOUND THEREIN)

club or private house may be, 160

procedure in respect of (_see_ PROCEDURE)

user of, 160 (_see_ Players)

warrant, 196, _et seq._ (_see_ PROCEDURE)

GRAND STAND,

_semble_ may be a “place” for betting, 171–174

stewards authority in, 191

GUARANTEE OF BET, 63

HAWKINS, Sir HENRY,

His judgments in

Read _v._ Anderson, 49

Taylor _v._ Smetton, 133

Jenks _v._ Turpin, 159

Reg. _v._ Cook, 180

Reg. _v._ Preedie, 174

HORSE-RACING,

a game within the Statute of Anne, 7

formerly illegal for over £10, 82 _et seq._

now all legal, _ibid._

within 10 miles of London require license, 84

chance, whether game of, 208

for stakes, equivalent to wager, 36 _et seq._

steeplechase, 84

ILLEGAL BETTING (_see_ BETTING HOUSE)

ILLEGAL CONSIDERATION (_see_ BILL OF EXCHANGE, _Lottery_)

void ditto, difference between and, 18–20

gaming debt is, 11

betting debt is, if bet on game, &c., _ibid._

bills or notes, effect of, on (_see_ BILL OF EXCHANGE)

is a defect of title, 19

should be specially pleaded, 23

deposit for, when recoverable, 143 _et seq._

should be accurately stated, 23

avoids bonds and other deeds, 24

part consideration illegal, whole avoided, 24 _et seq._

_secus_, where contract divisible, _ibid._

past race, bet on, not illegal, 11

deposit on race under £10, not an illegal consideration, 12

ILLEGALITY,

test of, 16, 162, _et seq._

3rd party cannot plead, 164

(_see_ PARTNERSHIP, AGENT, ILLEGAL CONSIDERATION, MANAGER, BANKER)

INDIAN LAW,

of wagers similar to English, 31

of speculative sales, 40

of lotteries, 131

INFANT,

sending advertisement or information to, 194

INFORMATION (_see_ PROCEDURE)

with respect to betting (_see_ ADVERTISING)

INSTRUMENT OF GAMING,

coin not included in, 205

pari-mutuel, _ibid._

in gaming houses, 156

may be seized by officers entering in Metropolis, 197

_secus_, out of Metropolis, _ibid._

superintendent entering may search for, _ibid._

evidence of gaming houses, 156

means for destroying ditto, _ibid._

magistrate may order destruction, 197–8

I O U,

not within 5 & 6 Wm. IV., c. 41, 28

IRELAND (_see_ METROPOLIS)

IRISH CASES,

Lynn _v._ Bell, }

Crofton _v._ Colgan, }

Graham _v._ Thompson, } (_see_ TABLE OF CASES.)

MacElwaine _v._ Mercer, }

Irwin _v._ Osborne, }

Newcomen _v._ Lynch, }

JUDGE (in race),

jurisdiction of, 76 _et seq._

decision final, _ibid._

LEEMAN’S ACT (_see_ STOCK EXCHANGE BROKER)

LICENSED PREMISES,

gaming in, permitting illegal, 202

knowledge or connivance of owner

necessary, _ibid._

what is gaming, 204

may be entered under Gaming and Betting House Acts, 200

betting in, when legal, 205

billiards, in, 85

public table, when legal, 157

LISTS (_see_ BETTING LISTS)

LOAN OF MONEY,

for gaming purposes, _semble_ illegal, 15, 16

for betting on game, &c., illegal, _ibid._, 15, 16

for paying lost bets recoverable, 15, 16

for illegal gaming, penalty, 15, 16, 162

cheques given to repay, 15, 16

for gaming abroad, 15, 16

LOTTERY (_see_ PLACE),

adventurers in, penalty on, 129, 130, 132

advertising illegal, _ibid._

penalty recoverable only in Attorney-General’s name, _ibid._, 131,

146

aiding and abetting, 130, 133

Art Unions, when legal, 147

bonus in companies, distribution of by lot, 137

companies formed for (_see_ PARTNERSHIP)

characteristics of, 140

charter for, void, 128

in club or private house, 132

Bazaars,

proceedings in, _qy._ within Lottery Acts, 142

definition of, 128, 140

fish ponds, 142

foreign lotteries, 133

illegality of, 142

deposits recoverable on notice, 143

vitiates subsidiary contract, _ibid._

little-goes illegal, 130

partnership in, 145

patent for, void, 128

sale under guise of setting up, 129, 130

stakeholder of, 133

sweepstakes, 134

tickets, sale of, 128 _et seq._

proceedings in case, 146

warrant for arrest, 130

Royal Palaces, exception in favour of, 86

no privilege of Parliament, 148

MANAGES OF BETTING HOUSE, GAMING HOUSE,

liability of 155, 160, 179

committee of club, _ibid._

banker or croupier, _ibid._

profits, cannot be sued for, 164

salary, cannot sue for, _ibid._

_secus_, if manager only of legal part of business, 180

METROPOLIS (_see_ PUBLIC PLACE)

cock-fighting in, 85

horse-race within 10 miles require licence, 84

Gaming Houses in,

Commissioners of Police may issue warrant to superintendent to

search, 197

superintendent entering may seize instruments of gaming, 197

Betting Houses (_see_ PROCEDURE)

penalties recovered in payable to Receiver of Police, 198

betting in streets of, 208

Ireland, in, means Dublin, 197

NEWMARKET MEETING,

exempt from old laws against horse-racing, 83

a moveable feast, 81

NOMINATOR,

death of, avoids entry of horse, 38

NOTICE,

to determine authority (_see_ STAKEHOLDER)

of illegal consideration (_see_ BILL OF EXCHANGE)

OCCUPIER (_see_ BETTING HOUSE PLACE)

OFFICIAL ASSIGNEE (_see_ STOCK EXCHANGE)

OPTIONS (_see_ STOCK EXCHANGE)

PALACES, ROYAL,

exempt from laws against unlawful games and lotteries, 86

PARTITION BY LOT,

among joint tenants, &c., exempt from Lotteries Act, 129, 141

PARTNERSHIP,

right to account of profits

in betting transactions, 41, 191

in lotteries, 115

in gaming house, 162

in commission agency business, 191

PENALTY TO ENFORCE WAGER NOT RECOVERABLE, 63

PERSON FOUND THEREIN (_see_ GAMING HOUSE, BETTING HOUSE)

may be arrested, 197

what to be done with, _ibid._, note

need not be found gaming, 198

presumption against, 156

penalty on (_see_ PLAYERS)

PERSONS RESORTING THERETO (_see_ BETTING HOUSE)

meaning of, 183

not within Act, 179

PLACE (_see_ PUBLIC PLACE BETTING HOUSE)

within Lottery Acts, 130

within Betting House Act

enclosures, 171

roof immaterial, 170

moveable structures, _ibid._

grand stand, 174

stool, 171

umbrella, 170

user of what amounts to, 176

habitual not necessary, _ibid._

occupier of, 169

person using same, 179

must be limited in space, 174

a room, 174

for cock-fighting, 169

PLATE, meaning of, 74, 82

“PLAY OR PAY,” meaning, 81 (_see_ APP. B.)

PLAYERS (in illegal games) 118, 121, 152, 161

in lotteries, consent of Attorney-General to prosecution, 132, 152

PRIVILEGE OF PARLIAMENT,

none in lottery prosecutions, 148

in gaming house, do., 165

PRIZE (_see_ SUBSCRIPTIONS TO PRIZE)

PROCEDURE,

1. Gaming Houses

_In Metropolis._

Commissioners of Police may issue order to superintendent to

search, 196 _et seq._

Power of superintendent to search for and seize instruments of

gaming, 197

Justices may order destruction of ditto, 197

_Out of Metropolis._

Justices may on information issue search warrant, 197

form of warrant, _ibid._

information need not show that persons were found playing for

money, 198

no power to authorize seizure of instruments of gaming, 197

may authorize destruction of ditto, 198

Persons found therein (_see_ PERSONS FOUND THEREIN), 197

may be apprehended on spot, _ibid._

whether gaming or not, 198

may be required to give evidence, _ibid._

but then free from prosecution, _ibid._

Vexatious Indictment Act applies, 199

penalties application of, 198

appeal, 199

no certiorari, _ibid._

actions against officers, _ibid._

2. Betting Houses

Justices may issue warrant to search and seize lists and documents,

200

in metropolis Commissioners’ powers same as in gaming houses, 200

information, fresh, necessary after arrest before prisoner charged,

200

may be before one justice, _ibid._ 201

licensed premises subject to Act. 200, 205

PRODUCE STAKES,

breeders cannot recover, 76

PROMISSORY NOTE (_see_ BILL OF EXCHANGE)

PUBLIC HOUSE (_see_ LICENSED PREMISES)

PUBLIC PLACE,

what is a, 206

PUNTERS (_see_ PLAYERS)

PURCHASE (speculative)

not a wager, 39

RACE COURSE,

_qy._ a place, 174

a public place, 206

READY MONEY BETTING,

place kept or used for illegal betting, 187 _et seq._

(_see_ BETTING HOUSE, COMMISSION AGENT, DEPOSIT)

RESCISSION (by wager)

void, 38

ROOM (_see_ PLACE)

ROYAL PALACE

gaming in, lawful, 86

RULES OF RACING EVIDENCE, 53, 81

RULES OF BETTING do., _ibid._ (_see_ APP. B.)

SALE,

wager under guise of, void, 35

lottery under guise of, illegal, 129, 139

bank shares (_see_ STOCK EXCHANGE)

speculative sales not wagers, 39

nor sales with contingencies, 36

of things first in possession, valid (_see_ INDIAN LAW), _ibid._

of public stocks not in possession formerly void under Barnard’s Act,

40, 87

of future dividends

not a wager, 102

forbidden by Stock Exchange Rules, 103

SCOTLAND,

Betting House Act applies to, 193

STAKEHOLDER,

agent for depositor only, 54 _et seq._

deposits revocable before paid over, _ibid._

notice necessary, 57

authority determined, 60

(1.) by express revocation

(2.) by impossibility of performing his trust

(3.) by death of depositor

(4.) by bankruptcy of depositor (_see_ LOTTERY)

liability of

for paying wrong person (_see_ WINNER), 62

for default in payment of stakes, _ibid._

cannot sue for stakes, _ibid._

not liable under Betting House Act, 190

STAKES

race for a wager contract, 36

difference between, and subscription to prize, 37, 73

cheque for, when for illegal consideration, 12

(see SUBSCRIPTIONS, STAKEHOLDER)

STAMP _semble_,

sporting agreement should have, 81

STARTER,

when necessary, 81

STEEPLECHASE (_see_ HORSE-RACE)

STEWARD OF RACE,

decision final (_see_ CONSTRUCTION), 78

difference between and arbitrators, 78

grand stand, can order off, 191

self-interest no disqualification, 78

liability of

for not appointing judge, 82

for default of stakeholders, _ibid._

STOCK EXCHANGE (_see_ BROKER)

bargains for differences not known, 96 _et seq._ (_but see_ BUCKET

SHOP)

test of difference, bargain, 91

customs of binding on principal, 117, 123

_secus_ if contrary to law, _ibid._

broker liable personally to jobber, 96

bank shares, sale of, 116

Leeman’s Act not regarded, 117

liability of broker for not complying with, _ibid._

_qy._ if principal has acquiesced, 119, 122

actual transfer not affected, 122

vendors indemnity against calls, 123

continuations, nature of, 108 _et seq._

whether in nature of wagers, 110

“taking in” by, different from loan, _ibid._

Contango, 109

Backwardation, 113

_Options_, puts, calls, nature of, 106

_semble_ not in nature of wager, 107

_Differences_,

bargains for, not known on, 90, _et seq._

test of, 94

broker can recover for, from client, 97

defaulter, due to, payable to official assignee, 89

_Official Assignee_,

receives differences due to defaulter, 89

claims against, for differences due to defaulter, _ibid._

Trustee in bankruptcy of defaulter cannot recover differences from,

_ibid._

_Time Bargains_, meaning of, 95, 101 (_see_ SALES)

_Wagering_,

unknown on, 96

test of, in transactions on, 94

SUBSCRIPTION TO PRIZE,

deposit with stakeholder not test of, 69 _et seq._

stakes are not, 36, 69

sum added by outsider, may be, 73

entrance money, 74

forfeits, _ibid._

cups, _ibid._

“SUM ADDED” by OUTSIDER,

recoverable, 73 (_see_ ADDED MONEY)

may be a subscription to a prize, _ibid._ (_see_ STAKES)

SUPERINTENDENT

(_see_ PROCEDURE, INSTRUMENTS OF GAMING, METROPOLIS)

SWEEPSTAKES (_see_ LOTTERY, STAKEHOLDER)

TATTERSALL’S,

not within Act, 183

TELEGRAM (_see_ ADVERTISING)

TICKET (_see_ LOTTERY)

TIME BARGAINS (_see_ STOCK EXCHANGE)

TIPSTER,

agreement with, 36, and note in APPENDIX A.

business of, not illegal, 193

advertising do., _ibid._ (_but see_ INFANT)

UMPIRE (_see_ JUDGE, WINNER)

UNLAWFUL GAMING

what is, 159

houses kept for, 154, 159

in licensed premises, 202

(_see_ EXCESSIVE GAMING, PLAYERS)

UNLAWFUL GAMES

what are, 129, 162

legal effect of, 162

in licensed premises, 202

USER (_see_ PLACE GAMING HOUSE)

VEXATIOUS INDICTMENT (_see_ PROCEDURE)

WAGER CONTRACT (_see_ SUBSCRIPTION TO PRIZE DEPOSIT)

nature and test of, 32 _et seq._

agent and principal, agreement between not in nature of, 40

consensus and knowledge of both parties necessary, 32

construction of (_see_ CONSTRUCTION)

dividends, sale of future, not, 102

games, &c., for money, are, 36

guarantee of, enforceable, 63

mutuality necessary, 33

parties select their own events, 33

penalty for non-performance not recoverable

rescission of contract by, void, 38

sale, under guise of, void, 35

sale of things not in possession, 39

time bargains (_see_ STOCK EXCHANGE)

winner and loser is of essence of, 33

Tipster, agreement with, 36 (but _see_ note in APPENDIX A.)

WARRANT,

general warrants bad, 197

against gaming and betting houses, form of, 196

lottery laws, breach of, 130

WELSHING, AN INDICTABLE OFFENCE, 195

WINNER,

second horse may be, 75

must be a competitor, _ibid._

there must be a loser, _ibid._

steward’s decision final, 78

umpire’s and judge’s do., 76

agent paving (_see_ AGENT), 52

stakeholder (_see_ STAKEHOLDER), 62

WINNING,

by fraud penal, 161

offence complete before payment, 165

-----

Footnote 1:

16 East, 150.

Footnote 2:

_Evans_ v. _Jones_, 5 M. & W., 77.

Footnote 3:

Cowp., 37.

Footnote 4:

1 T. R., at p. 60.

Footnote 5:

2 Cowp., 729.

Footnote 6:

4 Camp., 152.

Footnote 7:

1 B. & Ald., 683.

Footnote 8:

3 Camp., 168.

Footnote 9:

T. R., 693.

Footnote 10:

_Atherfold_ v. _Beard_, 2 T. R., 610.

Footnote 11:

_Squiers_ v. _Waiskin_, 3 Camp., 140.

Footnote 12:

_McKinnell_ v. _Robinson_, 3 M. and W., 435.

Footnote 13:

_Fisher_ v. _Waltham_, 4 Q. B., 889.

Footnote 14:

_Gilbert_ v. _Sykes_, 16 East, 150.

Footnote 15:

1 T. R., 56.

Footnote 16:

12 East, 247.

Footnote 17:

By 18 Geo. II., c. 34, the test of excess was extended to the loss of

£20 within 24 hours.

Footnote 18:

_Smith_ v. _Bond_, 11 M. & W., 549.

Footnote 19:

10 M. & W., 723.

Footnote 20:

2 Wils., 349.

Footnote 21:

10 M. & W., 723.

Footnote 22:

See _post_ p. 84.

Footnote 23:

5 Q. B., 693.

Footnote 24:

7 Bing., 405.

Footnote 25:

_Daintree_ v. _Hutchinson_, 10 M. & W., 85.

Footnote 26:

_Lynall_ v. _Longbottom_, 2 Wils., 36. 1 C. & M., 797.

Footnote 27:

_Jeffreys_ v. _Walter_, 1 Wils., 220.

Footnote 28:

3 M. & W., 435.

Footnote 29:

See _Squires_ v. _Waiskin_, 3 Camp., 140, and _Martin_ v. _Hewson_, 10

Exch., 737.

Footnote 30:

1 Q. B., 631.

Footnote 31:

_Emery_ v. _Richards_, 14 M. & W., 728.

Footnote 32:

2 Burr, 1080.

Footnote 33:

2 Camp.

Footnote 34:

2 Strange, 1249.

Footnote 35:

1 10 M. & W., 723.

Footnote 36:

See, too, _Thorpe_ v. _Coleman_, 1 C. B., 990.

Footnote 37:

7 Bing, 405.

Footnote 38:

2 Strane, 1155.

Footnote 39:

4 B. & Ald., 212.

Footnote 40:

Q. B., 631.

Footnote 41:

5 E. & B., 238.

Footnote 42:

10 M. & W., 723.

Footnote 43:

1 C. B., 990.

Footnote 44:

14 M. & W., 728.

Footnote 45:

1 Phil. 147.

Footnote 46:

8 Ch. Div., 756.

Footnote 47:

8 Ch. Div. 756.

Footnote 48:

8 L. T. N. S., 255, and see _Quarrier_ v. _Coulston_, 1 Phil. 147.

Footnote 49:

3 M. & W.

Footnote 50:

See _Foot_ v. _Baker_, 5 M. & G., 335.

Footnote 51:

7 Taunt, 246.

Footnote 52:

2 Phil. 801.

Footnote 53:

11 Ch. Div., 170.

Footnote 54:

15 Ch. Div. 247.

Footnote 55:

1 Ex Div., 13. A fuller report is in 33 L. T. n.s., 700.

Footnote 56:

_Post_, p. 42.

Footnote 57:

_Fitch_ v. _Jones_, 5 E. & B., 238. See Lord Campbell’s judgment.

Footnote 58:

45 & 46 Vict., c. 61.

Footnote 59:

23 Q. B. D. 345.

Footnote 60:

5 E. & B. 238.

Footnote 61:

56 L. J. Q. B. 248.

Footnote 62:

3 M. & K. 104.

Footnote 63:

Sm. & G. 194.

Footnote 64:

6 Ad. & E.

Footnote 65:

B. & Ald., 212.

Footnote 66:

O. XIX., r. 15.

Footnote 67:

_Harvey_ v. _Towers_, 6 Ex. 656.

Footnote 68:

2 M. & W., 641. See, too, _Bingham_ v. _Stanley_, 2 Q.B., 117.

Footnote 69:

1 Bing., N. C.

Footnote 70:

O. XXVIII, r. 6., Rules of Court, 1883.

Footnote 71:

4 B. & Ald., 212. _Ante_, p. 10.

Footnote 72:

3 Sm. & G., 194.

Footnote 73:

16 Q. B., 423.

Footnote 74:

L. R. 9 Eq., 471.

Footnote 75:

4 Taunt, 165.

Footnote 76:

1 H. & N. 278.

Footnote 77:

_Soulby_ v. _Portarlington_, 3 M. &. K., 104; _Pearce_ v. _Gray_, 2 Y.

& C. 322; _Milltown_ v. _Stewart_, 3 M. & C., 18; _Fox_ v. _Hill_, 2

D. & J., 353.

Footnote 78:

Sec. 24 (5).

Footnote 79:

13 L. T., 71 and 159.

Footnote 80:

Ir. Rep. 10, C. L., 487.

Footnote 81:

3 Sm. & G., 194.

Footnote 82:

Ir. Rep. 10 C. L. 487.

Footnote 83:

5 E. & B., 270.

Footnote 84:

1 Phil. 147; _Bubb_ v. _Yelverton_, L. R. 9, Eq. 471, was the case of

a bond but was decided on another point.

Footnote 85:

This expression did not apply to an action commenced before the Act

was passed. _Vide_ _Moon_ v. _Durden_, 2 Ex., 22.

Footnote 86:

L. R., 10 Q. B., 109.

Footnote 87:

1 Q. B., _vid. sup._, 9.

Footnote 88:

5 App. Ca. p. 344.

Footnote 89:

8 Ch. D., 756.

Footnote 90:

10 M. & W., 723.

Footnote 91:

4 Jur. N. S., 693.

Footnote 92:

4 Q. B. D., 685.

Footnote 93:

10 Q. B. D., 100.

Footnote 94:

5 E. & B., 238. _Vid. sup._, p. 11. _et seq._, as to the law relating

to bills given for an illegal consideration.

Footnote 95:

33 L. T. n.s., 561.

Footnote 96:

4 Q. B. D., 685. The cases bearing on this point are more fully

discussed in the next chapter on Stock Exchange Transactions.

Footnote 97:

Per COTTON, L. J., in _Thacker_ v. _Hardy_, p. 695.

Footnote 98:

2 Wils., 309.

Footnote 99:

See, too, _Caminada_ v. _Hulton_, 60 L. J. M. C., 116.

Footnote 100:

Each promise to pay on one event, being the consideration, and the

sole consideration for the promise to pay in the other event.

Footnote 101:

See Stutfield on “Tattersall’s Rules of Betting,” _Field_ Office,

where this view of the matter is fully elucidated.

Footnote 102:

4 H. & N., 359.

Footnote 103:

5 E. & B., 904.

Footnote 104:

11 C. B., 526.

Footnote 105:

10 Ir. Rep. Com. L., 133.

Footnote 106:

3 Bing., N. C., 88.

Footnote 107:

2 C. P. D., 76.

Footnote 108:

5 Q.B., 693.

Footnote 109:

2 Ex. Div. 422.

Footnote 110:

10 M. & W., 723.

Footnote 111:

7 D. M. & G., 55.

Footnote 112:

36 L. T. n.s., 702.

Footnote 113:

By. & M., 386.

Footnote 114:

B. & C., 1.

Footnote 115:

5 M. & W., 462.

Footnote 116:

4 Q. B. D., at p. 6.

Footnote 117:

33 L. T. n.s., at p. 563.

Footnote 118:

4 Q. B. D., at p. 688. See further on this topic the chapter on the

Stock Exchange.

Footnote 119:

26 L. J. Ch., 841.

Footnote 120:

12 C. B. 468.

Footnote 121:

36 L. J. Exch., 178.

Footnote 122:

_Ante_ p. 48, where the case is more fully set out.

Footnote 123:

15 Q. B. D., 363.

Footnote 124:

22 Q. B. D., 680.

Footnote 125:

7 T. R., 157.

Footnote 126:

See, too, and consider _MacRae_ v. _Clark_, L. R. 1 C. P., 403.

Footnote 127:

20 Q. B. D. at p. 643.

Footnote 128:

See _Ferrar’s Case_, L. R. 9 Ch. 355.

Footnote 129:

7 T. L. R. 748.

Footnote 130:

10 Ex., 572.

Footnote 131:

10 Ex., 614.

Footnote 132:

15 C. B., 562.

Footnote 133:

15 C. B. n.s., 316.

Footnote 134:

4 Taunt, 165.

Footnote 135:

W. N. C., 1870, 95.

Footnote 136:

24 L. T. n.s., 822.

Footnote 137:

4 Q. B. D., 685.

Footnote 138:

44 L. J. C. P., 309.

Footnote 139:

26 Sol. Jour., 509.

Footnote 140:

See per WILDE, C.J., in _Smart_ v. _Sandars_, 5 C.B., 895.

Footnote 141:

10 Q. B. D., 100.

Footnote 142:

15 C. B. n.s., 316.

Footnote 143:

33 L. T. n.s., 561.

Footnote 144:

10 Q. B. D., 100.

Footnote 145:

13 Q. B. D., 779; 51 L. T. n.s., 102.

Footnote 146:

15 Q. B. D., 363.

Footnote 147:

See _post_ Appendix B. and Stutfield’s “Tattersall’s Rules of

Betting:” _Field_ Office.

Footnote 148:

As bets are not recognised by law, this would seem to be the only

criterion in such matters, but see _Robinson_ v. _Mollett_, L. R., 7;

H. L. 802.

Footnote 149:

W. N. C., 89, p. 116.

Footnote 150:

_Hastelow_ v. _Jackson_, 8 B. & C., 225; _Aubert_ v. _Walsh_, 3 Taunt,

277; _Smith_ v. _Bickmore_, 4 Taunt, 474; _Howson_ v. _Hancock_, 8 T.

R., 575; _Robinson_ v. _Mearns_, 6 D. & R., 26; _Bate_ v.

_Cartwright_, 7 Price, 540.

Footnote 151:

14 M. & W. See, too, _Hudson_ v. _Terrill_, 1 Cr. & M., 797.

Footnote 152:

1 B. & Ald., 683.

Footnote 153:

14 M. & W., 728. See, too, _Maryat_ v. _Broderick_, 2 M. & W., 369,

where Parke, B., doubts the right of one depositor in a legal

horse-race to recover his stake.

Footnote 154:

5 C. B., 271.

Footnote 155:

10 Exch., 737.

Footnote 156:

9 Q. B., 431.

Footnote 157:

36 L. J. Exch., 178.

Footnote 158:

1 Q. B. D., 189.

Footnote 159:

8 B. & C., 225.

Footnote 160:

_Graham_ v. _Thompson_, Ir. R. 2 C. L., 64.

Footnote 161:

2 Ex. Div. 422.

Footnote 162:

5 App. Ca. 342. See also _MacElwaine_ v. _Mercer_, 9 Ir. Rep. C. L.,

17.

Footnote 163:

The reader should refer to the observations at p. 37, where the view

is expressed that the law relating to wagers applies to an ordinary

horse-race for stakes. The result of this would be that the present

observations as to the rights of depositors and stakeholders apply

also.

Footnote 164:

_Weller_ v. _Deakin_, 2 C. & P., 618; _Goldsmith_ v. _Martin_, 4 M. &

G., 5.

Footnote 165:

28 L. J. Q. B., 126. I. E. & E. 456.

Footnote 166:

7 D. M. & G., 55.

Footnote 167:

See _Markwick_ v. _Hardingham_, 15 Ch. Div., 339.

Footnote 168:

1 Q. B. D., 197.

Footnote 169:

5 C. & P., 147.

Footnote 170:

L. R., 2; P. C., 280.

Footnote 171:

L. R. 4, Q. B., 214 and _post_ p. 77.

Footnote 172:

5 Ir. Rep., C. L., 404.

Footnote 173:

See, too, _Daintree_ v. _Hutchinson_, 10 M. & W. 85, on this point.

Footnote 174:

7 D. M. & G., 55.

Footnote 175:

4 T. L. R., 326.

Footnote 176:

19 C. B. n.s. 765, but far better reported, 13, W. R., 390.

Footnote 177:

See _Rouquette_ v. _Overmann_, L. R., 10; Q. B., 525. For further

details and authorities reference may be made to “Story’s Conflict of

Laws,” or “Foote’s International Jurisprudence.”

Footnote 178:

2 Burr, 1,077. See, too, _Wynne_ v. _Callander_, 1 Russ., 293.

Footnote 179:

See _King_ v. _Kemp_, 8 L. T., n.s. 255.

Footnote 180:

1 Phil., 147.

Footnote 181:

12 O.B., 801.

Footnote 182:

_Vide sup._ p. 14, where this subject is dealt with in reference to

cheques.

Footnote 183:

_King_ v. _Kemp_, 8 L. T. n.s., 255.

Footnote 184:

5 C. B., 818.

Footnote 185:

1 Jur. N. S., 660. 5 E. & B. 270.

Footnote 186:

12 C. B., at p. 472.

Footnote 187:

11 Exh., 715.

Footnote 188:

5 Ir. Rep. C. L., 404.

Footnote 189:

L. R., 1 Ex., 248.

Footnote 190:

Ex. Div., 422; the facts are stated above.

Footnote 191:

5 App. Ca., 342.

Footnote 192:

5 App. Ca., 342.

Footnote 193:

L. R. 4 Q. B., 14.

Footnote 194:

L. R., 2 P. C. 78, _vide post_ p. 78.

Footnote 195:

_Vide sup._, p. 36, where this question is fully discussed.

Footnote 196:

In _Dowsen_ v. _Scriven_, 1 H. Bl., 219, “entrance money” was defined

as money which must be paid before the horse can start, but see Rule

of Racing 106.

Footnote 197:

Apply the principal of _Truman_ v. _Harris_, 9 Q. B. D., 264.

Footnote 198:

10 Ir. Rep., C. L., 133.

Footnote 199:

Defendant did not quote the saying of St. Paul, 1 Cor. ix. 24, “in a

race run all but _one receiveth_ the prize.”

Footnote 200:

1 C. P. D., 573.

Footnote 201:

5 Ir. Rep., C. L., 404.

Footnote 202:

28 L. J., Q. B., 126. 1 E. & E. 456.

Footnote 203:

L.R., 4 Q.B., 214. See, too, _Evans_ v. _Pratt_, 3 M. & G.

Footnote 204:

The point was not taken in this case that the agreement was in the

nature of a wager and the plaintiff therefore entitled to revoke the

stakeholder’s authority, but it will be observed that the defendant

had paid over the money _without receiving notice from plaintiff_.

Footnote 205:

14 M. & W., 193.

Footnote 206:

28 L. J., Q. B.

Footnote 207:

28 L. J., Exch., 1.

Footnote 208:

11 Exch., 715.

Footnote 209:

L. R., 2 P. C. 280.

Footnote 210:

The laws with regard to wagers in N. S. Wales, if, indeed, they were

in any way material to this case, seem to be a reproduction of 8 & 9

Vict., c. 109. _Trimble_ v. _Hill_, 5 App. Ca., 342.

Footnote 211:

15 D. R., 69.

Footnote 212:

Ir. Rep., 10 C. L., 248.

Footnote 213:

3 Camp. 168.

Footnote 214:

3 M. & G., 759.

Footnote 215:

10 M. & W., 85.

Footnote 216:

See Stutfield’s “Tattersall’s Rules of Betting,” p. 10.

Footnote 217:

_Dines_ v. _Woolf_, L. R. 2 P. C. 280. _Weller_ v. _Deakin_, 2 C. & P.

_Greville_ v. _Chapman_, 5 Q. B. 731.

Footnote 218:

_Evans_ v. _Pratt_, 3 M. & G., 759; and see 17 L. T., 323.

Footnote 219:

L. R. 2 P. C., 280. _Weller_ v. _Deakin_, 2 C. & P. _Greville_ v.

_Chapman_, 5 Q. B.

Footnote 220:

_Balfe_ v. _West_, 13 C. B., 466, at all events until he has done some

official act. See Rules of Racing, Part III.

Footnote 221:

See _Blaxton_ v. _Pye_, Wils, 309; _Applegarth_ v. _Colley_, 10 M. &

W., 723.

Footnote 222:

3 M. & G., 768.

Footnote 223:

3 M. & G., 765.

Footnote 224:

_Morley_ v. _Greenhalgh_, 32 L. J. M. C., 93.

Footnote 225:

See _Parsons_ v. _Alexander_, 1 Jur. N.S., 660.

Footnote 226:

_Ovenden_ v. _Raymond_, 34 L. T. N. S., 199.

Footnote 227:

As to hazard, see _McKinnell_ v. _Robinson_, 3 M. & W.

Footnote 228:

_R._ v. _Ashton_, 22 L. J. M. C., 1. 1 E. & B., 286.

Footnote 229:

See particularly the account of the Park Club Case (_post_ p. 158.)

Footnote 230:

See Stutfield’s “Rules and Usages of the Stock Exchange”; Effingham

Wilson.

Footnote 231:

_Wells_ v. _Porter_, 3 M. & W., 722; _Lyne_ v _Siesfield_, 1 H. & N.,

278; _Williams_ v. _Trye_, 23 L.J. Ch., 360.

Footnote 232:

4 Burr, 2070.

Footnote 233:

8 B. & Ald., 179; compare _Mortimer_ v. _MacCallan_, 6 M. & W., 58,

where the stock was actually delivered to the vendor.

Footnote 234:

5 E. & B., 999.

Footnote 235:

The Act provided that money paid to settle differences could be

recovered back by an action, sect. 5.

Footnote 236:

1 B. & P., 3—viz., that an agent cannot set up the illegality of a

transaction in answer to the principal’s claim for an account, but see

post pp. 162–4.

Footnote 237:

13 Ch. D., 667.

Footnote 238:

11 C. B., 526.

Footnote 239:

33 L. T., n. s., at p. 563.

Footnote 240:

4 Q. B. D., at p. 695.

Footnote 241:

W. N. C., 1 June, 1878; see, too, _Barry_ v. _Crosskey_, 2 J. & H., 1,

where this test was adopted.

Footnote 242:

At p. 694.

Footnote 243:

17 C. S. C., p. 475.

Footnote 244:

4 Q. B. D. 685.

Footnote 245:

5 M. & W., 462.

Footnote 246:

15 Ch. Div., 207.

Footnote 247:

As to carrying over, see _post_ p. 108, _et seq._

Footnote 248:

13 Ch. Div., 665.

Footnote 249:

_Byers_ v. _Beattie_, 16 W. R., 279.

Footnote 250:

4 Q. B. D., at p. 696.

Footnote 251:

16 C. S. C., 350.

Footnote 252:

33 L. T., N. S., 561.

Footnote 253:

This seems the result of the cases _Grizewood_ v. _Blane_, 11 C. B.,

526; _Ex parte Marnham_, 30 L. J., Bkpcy., 3.

Footnote 254:

4 T. L. R., 326.

Footnote 255:

17 C. S. C., 466.

Footnote 256:

“The evidence of Willis seems to make it clear that the customer had

this option, though this feature of the case was clearer in Howat’s

case (_post_). It does not appear whether the accounts were closed by

Shaw or by defendant’s instructions, but this does not seem to affect

the argument.”

Footnote 257:

30 L. J. Bkpcy. 3.

Footnote 258:

Since the above was written the case of _Stevens_ v. _Universal Stock

Exchange_ has been reported, 40 W.R. 494; in that case, however, it

does not appear that the printed conditions gave the customer the

option to treat the transactions as difference bargains.

Footnote 259:

See the Report of the Commissioners, p. 274, No. 6949.

Footnote 260:

See Report of 1878, at p. 29.

Footnote 261:

4 Q. B. D. at p. 696.

Footnote 262:

See as to this _Bongiovanni_ v. _Société Générale_, 54 L.T. n.s., 320,

and Stutfield’s “Rules and Usages of the Stock Exchange:” Effingham

Wilson.

Footnote 263:

30 L.J. Bkpcy., 1.

Footnote 264:

30 L. J. Bkpcy., 3.

Footnote 265:

In _ex parte Turner_, 3 D. & J., 46, it was held that carrying over an

account would bring a bankrupt within s. 201 of the Act of 1849, and

be a bar to his obtaining his discharge.

Footnote 266:

See Report, 1878, p. 23, Mr. Daniel’s evidence.

Footnote 267:

4 Q. B. D., 690.

Footnote 268:

33 L. T., N. S., 561.

Footnote 269:

1870, W. N. C., 95. See also the cases quoted above as to the right of

the agent to recover.

Footnote 270:

_Ex parte Ryder_, 1 De G. & J., 317; _Ex parte Wade_, 8 D. M. & G.,

241; _Ex parte Matheson_, 1 D. M. & G.

Footnote 271:

_Ex parte Turner_, 3 D. & J. 46.

Footnote 272:

See 46 & 47 Vict., c. 52, sec. 28(3) _d_.

Footnote 273:

9 Q. B. D., 546.

Footnote 274:

For the nature and incidents of this transaction, _vide_ _Coles_ v.

_Bristowe_, L. R., 4 Ch. 3., and Stutfield’s “Rules and Usages of the

Stock Exchange:” Effingham Wilson.

Footnote 275:

Not yet reported except in the newspapers, August 11, 1884.

Footnote 276:

15 Q. B. D., 388.

Footnote 277:

14 Q. B. D., 460.

Footnote 278:

“Times,” 4th April, 1892.

Footnote 279:

9 M. & W.

Footnote 280:

32 Ch. D. 625.

Footnote 281:

But see next page for the law as recently altered by the Gaming

Amendment Act, 1892.

Footnote 282:

P. 53.

Footnote 283:

11 Q. B. D., at p. 210.

Footnote 284:

See _O’Connor_ v. _Bradshaw_, 5 Ex., 882; _Fisher_ v. _Bridges_, 3 E.

& B., 642.

Footnote 285:

See _ante_, p. 86, as to the exception of Royal Palaces.

Footnote 286:

See _Taylor_ v. _Smetten_, 11 Q.B.D., p. 210.

Footnote 287:

14 M. & W., 711.

Footnote 288:

See pp. 129–130.

Footnote 289:

44 Ch. D. 306.

Footnote 290:

1 C. B., 974.

Footnote 291:

The learned Serjeant is evidently using the point decided in

_Applegarth_ v. _Colley_—that the Statute of Anne contemplated a case

where a single person lost £10.

Footnote 292:

9 Q. B., 431. See, too, _Mearing_ v. _Helling_, 14 M. and W., 711.

Footnote 293:

2 H. & C., 912., 28 J. P., 199.

Footnote 294:

5 Ex., 882.

Footnote 295:

11 Ch. Div., 170.

Footnote 296:

5 App. Ca.

Footnote 297:

10 Cox, C. C., 352.

Footnote 298:

11 Q. B. D., 206.

Footnote 299:

52 J. P. 821.

Footnote 300:

60 L. J. M. C. 116.

Footnote 301:

1 C. B. 974.

Footnote 302:

See per POLLOCK, C.B., in _O’Connor_ v. _Bradshaw_, 5 Exch. at p. 891.

Footnote 303:

3 E. & B., 642.

Footnote 304:

12 Geo. II., c. 28, 1.

Footnote 305:

2 Ex. Div. 422, _ante_ p. 58.

Footnote 306:

_Wilson_ v. _Strugnell_, 7 Q.B.D., p. 551. _Kearley_ v. _Thomson_, 24

Q.B.D., 742.

Footnote 307:

_Savage_ v. _Madder_, 36 L. J. Ex. 178.

Footnote 308:

9 Q. B. 431.

Footnote 309:

Per Fry, L. J. _Kearley_ v. _Thomson_.

Footnote 310:

2 Cowper 790.

Footnote 311:

See, too, _Jacques_ v. _Golightly_, 2 Black 1073.

Footnote 312:

_Allport_ v. _Nutt_, 1 C. B. 974.

Footnote 313:

1 C. B., 974.

Footnote 314:

_Vide sup._, p. 17.

Footnote 315:

1 B. & P., 3.

Footnote 316:

1 Ex. Div. 13.

Footnote 317:

Bell C. C.

Footnote 318:

5 B. & A., 555.

Footnote 319:

5 T. R., 338.

Footnote 320:

9 Dowl, 937.

Footnote 321:

11 Q. B. D. 207.

Footnote 322:

1 B. & C., 27.

Footnote 323:

These statutes have been set out above in the Chapter on Lotteries.

Footnote 324:

See _post_ p. 161.

Footnote 325:

13 Q. B. D. p. 524.

Footnote 326:

The importance of this as bearing on the present law of unlawful games

is dealt with in _Turpin_ v. _Jenks_ (see _post_).

Footnote 327:

13 Q. B. D., 377.

Footnote 328:

The procedure by which warrants may be issued and proceedings enforced

against the keepers of gaming houses is dealt with _post_ p. 196.

Footnote 329:

See sections 3 and 6, _post_ p. 196 _et seq._

Footnote 330:

We have already discussed the nature of gaming houses at Common Law,

pp. 149–151.

Footnote 331:

See _post_ for all full account of the case, 13 Q. B. D., 505.

Footnote 332:

13 Q. B. D., 505.

Footnote 333:

The case occurred within the C Division of Police, and so properly

belonged to the Marlborough Street Police Court jurisdiction; but,

being public prosecution by the police, was heard at Bow Street.

Footnote 334:

See _Crockford_ v. _Maidenhead_, 8 L. T., 217.

Footnote 335:

Sec. 16 of the Act of Henry forbade apprentices and artificers, &c.,

to play tennis, bowls, coyting, and other games.

Footnote 336:

As to what constitutes a game of chance, see _post_ “Betting in a

public place.”

Footnote 337:

13 Q. B. D., 505.

Footnote 338:

7 Taunt, 246.

Footnote 339:

2 Phil., 801.

Footnote 340:

15 Q. B. D., 363.

Footnote 341:

11 Ch. D., at p. 195.

Footnote 342:

9 M. & W., at p. 642.

Footnote 343:

1 B. & P., 3.

Footnote 344:

1 B. & P., 296.

Footnote 345:

11 Ch. D., at p. 194.

Footnote 346:

5 E. & B., at p. 1016.

Footnote 347:

4 Q. B. D., 685 _Lyne_ v, _Siesfield_, 1 H. & N., 278.

Footnote 348:

12 C. B., 468.

Footnote 349:

45 L. T., N. S., 512; 15 Cox, C. C., 3.

Footnote 350:

8 Cox, C. C., 305; 4 Cox, 390.

Footnote 351:

See _Smith_ v. _Bond_, 11 M. & W., 549.

Footnote 352:

As to the difference between the offence under this section, also

those specified in ss. 1 and 3, see _post_ p. 190.

Footnote 353:

19 C. B. N. S., 765; 34 L. J. C. P., 159. See _ante_ p. 65 as to this

case.

Footnote 354:

L. R., 9 Q. B., at page 443. Qy. whether the case would not come with

36 & 37 Vict., c. 94.

Footnote 355:

3 B. & S., 374; 32 L. J. (M. C.), 93.

Footnote 356:

L. R., 9 Q. B., at p. 444.

Footnote 357:

L. R., 9 C. P., 339.

Footnote 358:

L. R., 3 Ex., i. 37.

Footnote 359:

L. R., 9 C. P., 339. See 36 & 37 Vict., c. 94.

Footnote 360:

L. R., 9 Q. B., 440.

Footnote 361:

L. R., 10 Q. B., 102.

Footnote 362:

8 Q. B. D., 275.

Footnote 363:

14 Q. B. D., 588.

Footnote 364:

62 L. T. n. s., 433.

Footnote 365:

13 Q. B. D., 377.

Footnote 366:

Not yet reported, but likely to be reported in Cox, C. C., during

1892.

Footnote 367:

13 C. S. C. (Just.) p. 9.

Footnote 368:

62 L. M. S., 433.

Footnote 369:

192 1 Q. B., 20.

Footnote 370:

L. R., 10 Q. B., 102.

Footnote 371:

12 Q. B., D. 36.

Footnote 372:

44 L. J. C. P., 309; 32 L. T. N. S., 825.

Footnote 373:

L. R., 9 Q. B., 440.

Footnote 374:

10 Q. B., 102.

Footnote 375:

41 J. P., 792.

Footnote 376:

62 L. T. N. S. 433.

Footnote 377:

44 L. J. C. P., 309.

Footnote 378:

14 Q. B. D., 588.

Footnote 379:

See _Morley_ v. _Greenhalge_, 32, L. J. M. C., 93.

Footnote 380:

14 Q. B. D., at p. 591.

Footnote 381:

13 Q. B. D., 505.

Footnote 382:

37 J. P., 262.

Footnote 383:

13 Q. B. D., at p. 525.

Footnote 384:

13 Q. B. D., 377.

Footnote 385:

44 L. J. C. P., 309.

Footnote 386:

8 L. T., 217.

Footnote 387:

L. R., 10 Q. B., 102.

Footnote 388:

The preamble, however, does speak of setting up betting offices.

Footnote 389:

Hansard, Vol. 129, p. 87.

Footnote 390:

See, too, per Hawkins, J., _Reg._ v. _Preedie_, referred to, _ante_ p.

174.

Footnote 391:

As to these establishments, see _ante_ p. 66, and _ante_ the chapter

on the Stock Exchange.

Footnote 392:

60 L.J.M.C. 116: The case has before been dealt with under Lotteries.

Footnote 393:

34 J.P., 661.

Footnote 394:

24 Q. B. D., 529; better reported 62 L. T. N. S., 436.

Footnote 395:

13 M. & W., 838.

Footnote 396:

Hansard, Vol. 218, p. 595.

Footnote 397:

L. R., 12 Q. B. D., 128.

Footnote 398:

20 Q. B. D., 182.

Footnote 399:

_Reg._ v. _Newton_, L.R., 1892, 1 Q. B., 648.

Footnote 400:

A question was raised in _Turpin_ v. _Jenks_, as to what was to be

done with the “persons found therein.” The answer seems to be that the

power is given to enable the officers to ascertain by inquiry how far

these persons were responsible for the gaming. See per Field, J., in

_Anderson_ v. _Hume_, 46, J.P. 825; besides, the Statute 17 & 18

Vict., c. 38, compels these persons to give their addresses. It would

seem therefore that having given their addresses they should be

released until the police are in a position to make a definite charge

against them.

Footnote 401:

See, too, _Anderson_ v. _Hume_, 46 J. P. 825.

Footnote 402:

28 L. J. M. C., 45; 1 E. & E., 276.

Footnote 403:

Ex. Div. 320.

Footnote 404:

46 J. P., 825, and see _ante_, p. 197, note.

Footnote 405:

1 Ex Div., 320.

Footnote 406:

In the same case (2 Ex. Div., 335) it was held that there was no

appeal from the Divisional Court, this being a criminal matter.

Footnote 407:

_Lee_ v. _Gold_, 44 J. P., 395.

Footnote 408:

_Onley_ v. _Gee_, 7 Jur., N.S., 570.

Footnote 409:

See _Anderson_ v. _Hume_, 46 J. P., 825.

Footnote 410:

1 Q. B. D., 89.

Footnote 411:

1 Q. B. D., 84.

Footnote 412:

12 Q. B. D., 360.

Footnote 413:

_Ubi sup._

Footnote 414:

21 Q. B. D., 249.

Footnote 415:

1 E. & A., 286; 22 L. J. M. C., 1.

Footnote 416:

20 L. T., 483.

Footnote 417:

3 Q. B. D., 454.

Footnote 418:

22. Q. B. D. 351.

Footnote 419:

29 L. J. M. C., 189.

Footnote 420:

_Hare_ v. _Osborne_, 34 L. T., 294.

Footnote 421:

_Cooper_ v. _Osborne_, 85 L. T., 347.

Footnote 422:

5 M. & G., 335.

Footnote 423:

58 L. J. M. C.

Footnote 424:

34 L. J M. C., 50.

Footnote 425:

L. R., 6 Q. B., 130.

Footnote 426:

L. R., 6 Q. B., 514.

Footnote 427:

_Reg._ v. _Holmes_, 25 L. J. M. C., 121.

Footnote 428:

45. J. P., 469;

Footnote 429:

_Langrish_ v. _Archer_, 10 Q. B. D., 44; but see _re Freestone_, 1 H.

& N., 93.

Footnote 430:

34 L. J. C. P., 159.

Footnote 431:

13 Q. B. D., 505.

Footnote 432:

22 Q. B. D., 351.

Footnote 433:

See Stutfield’s “Tattersall’s Rules on Betting,” _Field_ Office.

------------------------------------------------------------------------

TRANSCRIBER’S NOTES

1. Silently corrected obvious typographical errors and variations in

spelling.

2. Retained archaic, non-standard, and uncertain spellings as printed.

3. Re-indexed footnotes using numbers and collected together at the end

of the last chapter.

4. Enclosed italics font in _underscores_.