The law relating to betting, time-bargains and gaming

by George Herbert Stutfield; Henry Strother Cautley

PREFACE TO THE THIRD EDITION.

Since the publication of the last edition of this work the somewhat varied topics treated of herein have never ceased to occupy the attention of the Courts. Nor is it to be wondered at, considering the diverse and complex forms of gambling which the ingenuity, combined with the cupidity of mankind, is constantly inventing, that our judges should from time to time be called upon to adjudicate upon the legal attributes of the most recent devices.

Of legislative interference there has been but little. The Gaming Amendment Act, which was passed to prevent the evasion of the Act of 1845, by the interposition of an Agent, seems in reality to have substituted another anomaly, seeing that while it has abrogated the right of the Agent to recover reimbursement or commission from his principal, it at the same time leaves unaffected the right of the principal to recover winnings received by the Agent on his behalf. The only other statute which has been passed touching the subject, is the Infants’ Betting and Loans Act, which may have its uses in protecting youths at the Universities, Schools and Training Ships from unnecessary temptation.

Turning now to the fresh material afforded by the Contents of the Law Reports, it will be noticed that the course of business in what are commonly known as “bucket shops” has been considered in two cases in the Scotch Courts, Shaw v. The Caledonian Railway, and The Liquidator of the Universal Stock Exchange v. Mowat, with a view to ascertaining the identity of the transactions therein conducted with wager contracts. As to these two cases the Authors have ventured to give reasons for suggesting that they might have been decided the other way; and it is believed that similar cases are pending in this country, so that it is not unlikely that the question may soon be considered again. To the keepers of these establishments the question has a more serious importance than the mere rights and liabilities of parties to a particular bargain, seeing, as it is pointed out in the Chapter on Betting Houses, that if the transactions are wager contracts, the Betting House Act applies, and it would be difficult to contest the legality of a police raid.

In the Chapter on Lotteries the principal new case is that of the Persian Investment Corporation, which establishes the legality of companies formed to set up lotteries abroad.

But it is the Chapter on Betting Houses which has afforded the greatest scope for enlargement. That old and much vexed question “What is a place?” has several times of late been before the Courts. But what is perhaps the question of the greatest general interest under this heading, do Tattersalls and the other betting clubs contravene the Act? has never yet been raised in a practical form. At the same time the reader will find some dicta set out in extenso which go far to confirm the views previously expressed in these pages as to the distinction between legal and illegal betting. A careful consideration of the very difficult and complicated wording of the Act of 1853 has led the Authors to a conclusion which may have some important practical consequences on its enforcement, viz., that so far as betting on credit goes, business conducted by correspondence does not infringe the Act. Added to this we have the recent case of Davis v. Stephenson, that in order to constitute an illegal ready-money establishment the actual receipt of money must be within the establishment itself, the effect of which is considered in these pages.

One blank the Authors have endeavoured to fill. Great difficulty seems constantly to be experienced by those who have to do with the gambling laws, whether as judges, counsel or gamblers, owing to the absence of a clear understanding of various legal conceptions, such as “wager” and “lottery.” Authoritative description or definition there certainly is none. To define is proverbially hazardous and difficult. But an attempt is made in this edition to analyse the component parts of these two very difficult conceptions, thereby no doubt opening the door to numerous criticisms, but it is hoped at the same time throwing out some suggestions which may tend to prevent a confusion of ideas.

A few words on a more theoretical aspect of our gambling laws. The reader will not fail to have been struck with the frequent Parliamentary interpellations on the subject; many a time has the Home Secretary been called upon to reply to questions as to the intentions of the Government to introduce a general scheme of revision. No doubt a semblance of justification for this movement is afforded by a seeming want of impartiality in the attitude of the law to different sorts and conditions of men. The author of this work ventured not many years ago to offer to the public a synopsis of this branch of our jurisprudence (Nineteenth Century, November, 1889), in which an attempt was made to show that laws in restriction of gambling, if they are to effect their object, must in terms be so wide as to cover mere cases of gambling for innocent recreation; that, in consequence, their enforcement must largely be left to the discretion of the executive. This is not the place for a discussion of this somewhat broad and difficult question. The point is that it will behove those who embark in this enterprise of supposed reformation to formulate clearly first, the line of policy they would themselves like to pursue; second, the extent to which interference is likely to be tolerated by public opinion. Is all betting to be suppressed, including that carried on at Tattersall’s and the clubs? If you penalize playing “skittle-pool” for money in a public house, are you also going to bring the sixpenny rubber of whist at a West End club or private house under the ban of illegality? If, as at present, you connive at the Derby “sweeps” in Clubland, do you or do you not think it necessary to affect consistency and repeal the law under which a publican is fined for getting up a raffle for the Christmas goose? These are questions which must be settled, and it may be compromised before any reform of practical value can be carried through. Mere consolidations of statutes and case law may facilitate reference for practitioners, but they will not settle questions of public expediency.

G. H. S.

H. S. C.

June, 1892.