REVIEW OF THE LAW RELATING TO WAGER-CONTRACTS.
The present seems a favourable opportunity for a short review of the state of our law on the subject of wagering.
There are several ways in which the matter may be treated by the Legislature. It may declare the practice illegal in the sense of punishable, and endeavour to stamp it out by the machinery of the criminal law. This was the course adopted by the Statute of Anne, which made it penal to win more than £10 at one time or sitting by betting or gaming. Again, Barnard’s Act made it a criminal act to gamble in the funds, or even to settle differences on transactions of that nature. This species of legislation seems open to objection. Such a law must be uncertain in operation, as the offence is difficult to prove; and what is, perhaps, worse, it is still more difficult to disprove, and so capable of being turned into an instrument of extortion or revenge. But there are alternatives of a less violent character. It is possible to make wagering transactions illegal, not in the sense of criminal, but as contrary to public policy; the result of which would be, as it has been endeavoured to explain in an earlier part of this work, not only that the contracts themselves would be unenforceable, but that they would vitiate, at any rate as between the parties to the wager, every instrument or security, whether under seal or not; they would taint every contract or transaction arising out of or connected with the original wager. Thus the turf commission agent would not be able to recover what he had paid on his principal’s behalf if he allowed himself to be employed in a transaction contrary to the policy or the law.
In the Statute of Anne, and in Barnard’s Act, another means was resorted to of restricting the practice, viz., they gave the person who had lost and paid over a certain sum, a right of action to recover it within a given period. This might be a more efficacious method of repression than any other, as it is difficult to see how bookmakers could conduct a successful business, if in addition to the chances of never being paid, they could not call the money they had in their pockets their own. But the wisdom of such a species of legislation seems very questionable; as being in favour of dishonest persons it eventually operates to the disadvantage of persons who are ready to discharge their debts of honour. Besides, it hits the practice of betting in its least objectionable point. The payment of a bet implies that a man has not “plunged” beyond his means, particularly where the contract cannot be enforced against him. The object of the law is to discourage excessive gaming on credit, whereby persons might incur liabilities which their means can never enable them to meet.
There is yet another alternative course, which is summed up in the attitude which our law, in its present condition, assumes towards betting. In technical language, it declares wager-contracts void without making them illegal; it regards them as things not to be encouraged, but not absolutely forbidden, maintaining a neutral position as between the parties without being positively hostile. It will probably have become evident from the foregoing pages that the English law on the subject is in a somewhat peculiar state. In the first place its condition is decidedly piecemeal. To know the law in full it is necessary to refer to four different statutes, the dates of which, from first to last, extend over a period of about two hundred years. The Statutes of Charles II. and Anne must be studied before the effect and meaning of the Statute of William IV. can be made intelligible. But the latter statute, at any rate in its present application, deals only with cheques and securities given for betting debts, and that, too, only where the bet is made on a horse race, or some other game or pastime. Such securities it declares to be given for an illegal consideration. The contracts themselves are the subject matter of another statute passed a few years afterwards, which by a broad and sweeping enactment, very little in the style of English statute law, makes all wagers, of any sort whatever, not illegal, but void and unenforceable. It seems an anomaly that while all bets of themselves are simply void, yet when once a cheque is given in discharge or payment thereof, we are compelled to distinguish between bets on games and bets not on games; the former, directly the cheque is signed, becomes illegal, while a similar transformation is not effected in the case of the latter. The law at any rate seems capable of greater uniformity in this respect.
Another peculiarity of the law lies in this—that while wagers themselves cannot be made the subject of an action, yet in many cases they can be practically enforced by the joint exercise of legal and non-legal sanctions. This is specially the case with regard to betting on the turf, a large quantity of which is carried on, not directly between principals, but through the medium of betting agents. The agent makes the bet in his own name, and, so far as the other party is concerned, is the principal. If the bet is lost, the agent is, of course, under no legal obligation to pay. But these turf agents are members of what may be called a profession, and the dealings between the members are regulated by the strictest etiquette, a breach of which might entail serious consequences. It is well known that where an agent makes a bet, it is he who, by the rules of the turf, is responsible for payment. Some of the consequences of default were dwelt upon in the case of Read v. Anderson; but suffice it to say that a defaulter is practically turned out of his profession. So that payment is enforced against the agent just as effectually as it could be made the ground of an action at law. He must, if he can, obtain indemnity from his principal.
It is at this stage that the law steps in. When an agent has paid money on behalf of his principal the law gives the agent a right of indemnity. If the agent has been employed in a betting transaction, this right, says the law, arises not out of a wager but out of an implied promise by the principal to save the agent harmless from all the consequences of his performing his instructions. The principal knows that if the bet is lost the agent must pay; consequently the doctrine of an implied promise of indemnity applies equally where the transaction effected by the agent was void as being in the nature of a wager.[[281]] So eventually a transaction which, as between principals, the law would not recognise, is practically enforced by a circuitous process when effected through the medium of an agent.
But the inconsistency is seeming rather than real. The contract between the principal and the agent is not in the nature of a wager. It is more in the nature of a contract of loan. A promise by A that he will make B a present of £5 gives B no ground of action against A; it is simply void. But A employs C to go and pay the money on his behalf. C can, of course, recover what he has paid, from A. So a wager is nothing more than void, like the promise of a gift; it is not illegal. And this is the real explanation of the matter. The law does not forbid people to bet, so that in compelling the principal to indemnify his agent it is not enforcing any transaction contrary to its own policy.
Further, be it remembered, the law in its present state is not open to the charge of one-sidedness: the rights of the principal and the agent are reciprocal. The agent has the same hold over the bookmaker that the latter has over him; he could visit him with the ordinary penalties of default. But the agent who has received “winnings” on a bet, can no more refuse to account to his principal, than can a principal refuse to reimburse the agent who has paid losses. So eventually, in cases where the commission agent intervenes, fair dealing is enforced as between all parties. It is also worthy of consideration that actions in which betting transactions are involved, but which come before the Courts on a question as between principal and agent, are not open to the same objection as the actions which were allowed to be brought directly on the wager itself, and which necessitated the trial of absurd and frivolous issues. The interposition of an agent occurs, of course, almost exclusively in betting on the turf; and it may be taken that actions between principal and agent with respect to wagers will in all cases be concerned with wagers on horse-races. But in all such races there is a regularly established process for deciding as to the winner, and it is not likely that a man who was sued by a turf commission agent for reimbursements would be allowed to raise any question as to the correctness of the decision of the judge or the stewards of the race. In these cases, therefore, the time of the Courts is never taken up with disputes as to the event on which the bet was made—an inconvenience which in former times drove the judges to the extreme measure of putting all wager actions at the bottom of the cause list.
Of course it must not be forgotten that the law as settled in Read v. Anderson is yet subject to reversal by the House of Lords, a contingency which would materially affect the interests of turf commission agents; but so long as the decision of the Court of Appeal remains undisturbed, the law is that the agent who has made a bet in his own name has an irrevocable authority to pay the bet, if lost, on his principal’s behalf; and can recover the amount from him.
N.B.—Since these observations were written the Gaming Amendment Act, 1892, has, as has been pointed out above,[[282]] made some modifications in the law. The agent can no longer sue, though he can be sued.
CHAPTER III.
LOTTERIES.
A lottery has been defined to be “a distribution of prizes by lot or chance,” a definition which was accepted as correct by the Court in Taylor v. Smetten,[[283]] but which seems somewhat incomplete considering the complexity of the subject, see post p. 140 as to the tests of a lottery.
The setting up of lotteries has been declared illegal and penal by a long series of statutes commencing in the reign of William III. The full text of these statutes will be found in Chitty’s Statutes (title “Gaming”). It will be sufficient to summarise them for the purpose of the present work.
10 & 11 Wm. III., c. 17.
The Statute 10 & 11 William III., ch. 17, reciting that persons had of late fraudulently obtained great sums of money from the children and servants of merchants and traders by colour of patents or grants under the Great Seal, |Lotteries declared nuisances.| enacts by Section 1 that all such lotteries are common and public nuisances and all patents and licence for the same void.
Penalty of £500 for keeping a lottery.
(2.) That no person should after the 29th of December, 1699, publicly or privately exercise, keep open, show or expose to be played at, drawn at or thrown at, any kind of lottery by dice, lots, cards, balls, under penalty of £500.
£20 for playing at such lotteries.
(3.) All persons playing, throwing or drawing at such lotteries, or any other lotteries are liable to a penalty of £20.
9 Geo. I., c. 19. Foreign lotteries.
By 9 George I., c. 19, a penalty of £200 is inflicted for setting up any lottery by virtue of a grant from any foreign prince or issuing any advertisement for the same; also for selling tickets within the kingdom for any foreign lottery.
6 Geo. II., c. 35. £200 penalty for selling chances in foreign lotteries.
It seems that the latter statute was evaded by persons issuing tickets for numbers in foreign lotteries and setting up duplicates of such lotteries in this kingdom. So by 6 George II., c. 35, a penalty of £200 is imposed for selling or procuring any ticket, receipt, chance, or number in any foreign lottery, or in or belonging to any class, part, or division of such lottery, or any ticket for any duplicate of any foreign lottery.
12 Geo. II., c. 28. £200 penalty for setting up sales by lotteries.
12 George II., c. 28, inflicts a penalty of £200 for setting up any office or place under the denomination of “a sale of houses, land, advowson, presentations, plate, jewels, ships’ goods, or other things by way of lottery,” |Advertising for advances to be distributed by way of lottery.| or for advertising for advances of sums of money amounting in the whole to large sums to be divided among the subscribers by chances of the prizes in some lottery allowed by Act of Parliament, or for exposing for sale any of the above things by any game, method or device whatsoever to be determined by any lot or drawing.
By section 2 the games of ace of hearts, pharaoh, bassett and hazard are declared to be games or lotteries within the meaning of the recited Act, with the same penalties for setting up the same.
Sec. 3. Persons playing at games mentioned in the Act liable to £20 penalty.
By section 3 players or adventurers in any of the games mentioned in the Act, viz., ace of hearts, pharaoh, bassett and hazard, are liable to a penalty of £20; the same penalty is inflicted on persons taking part in any such lottery or sale.
All sales by lotteries declared void.
Section 4 makes all sales by lotteries void, and the subject matter of the lottery is forfeited to the person who shall sue for the same.
Division among joint tenants by lot lawful.
Section 11 provides that it shall be lawful for joint tenants and tenants in common to make partition of their several interests by lot as though the Act had not been passed.[[284]]
13 Geo. II., c. 19, passage and games with dice.
By 13 George II., c. 19, sec. 9, passage and all other games with dice, backgammon excepted, are declared to be lotteries within the last Act, with similar penalties on persons who “maintain, set up or keep, any office, table or place,” for such games, and on persons who “play, set at, stake or adventure” in the said games.
18 Geo. II., c. 34, Roly-Poly.
By 18 George II., c. 34, secs. 1 and 2 impose similar penalties in respect of setting up a house or place for or allowing roly-poly, or playing thereat.[[285]]
42 Geo. III., c. 119, Littlegoes declared to be lotteries.
By 42 George III., c. 119, section 1, all games or lotteries called “Littlegoes” are declared to be public nuisances.
Penalty £500 for keeping a lottery.
By section 2 any person keeping any office or place to exercise, show, or expose, to be drawn or thrown at by dice lots, cards, balls, numbers, or figures, or any other contrivance, any lottery called a littlego or any other lottery, or any person suffering the same to be carried on in his or her house, is made liable to a penalty of £500.
Section 3. Persons not proceeded against for such penalties may be convicted as rogues and vagabonds within the meaning of 17 and 27 George II.
Section 4. Power is given to any justice of the peace upon information on oath to issue a warrant authorising any person (but if by night then in the presence of a constable) to break open and enter any house or place where they have information of any offence being committed within this Act, |Persons aiding and abetting in lotteries.| and to apprehend all offenders and all persons aiding and abetting in any such offence. The latter are punishable as rogues and vagabonds.
The section also provides that persons obstructing any such officer in the execution of his duty shall be liable to be “fined, imprisoned, and publicly whipped.”
Section 4. Persons employing others in carrying on such lotteries to be deemed rogues and vagabonds.
Section 5. No person is to agree to pay money or to deliver goods on any event or contingency relative to the drawing of any tickets, lots, or numbers in any such lottery under penalty of £100.
Place.
By 4 George IV., c. 60, s. 60, the word “place” is declared to extend to any place in or out of an enclosed building, whether on land or water.
By section 31 any person selling tickets in any lottery authorised by any foreign potentate, or to be drawn in any country, or any lottery not authorised by Act of Parliament, or publishing any scheme for the sale of tickets, is liable to a fine of £50, and to be dealt with as a rogue and vagabond.
Tickets.
4 George IV., c. 60, s. 41, provides that any person selling tickets in any lottery or publishing any scheme for the sale of tickets, shall be punished as a rogue and vagabond.
46 Geo. III. c. 148. All proceedings to be taken in the Attorney-General’s name.
By 46 George III., c. 148, it is provided that all penalties under the former Act, or any act concerning lotteries, are to go to the Crown, and to be sued for only in the Attorney-General’s name.[[286]]
6 & 7 Wm. IV., c. 66. £50 penalty for advertising any lottery or ticket.
By 6 and 7 William IV., c. 66, a penalty of £50 is imposed on any person who prints or publishes any advertisement or other notice relating to the drawing of any foreign or other lottery not authorised by Act of Parliament, half the penalty to go to the informer, half to the Crown. The same penalty is imposed for printing advertisements of the sale of tickets or chances in any lottery.
8 & 6 Vict., c. 74. Penalties to go to Crown.
By 8 and 9 Vict., c. 74, to save newspaper proprietors the annoyance of being sued for inadvertently advertising lotteries contrary to the Act, it is enacted that all penalties shall go to the Crown, and proceedings only instituted in the Attorney-General’s name.
Indian law.
By the Indian Penal Code, 294A, it is made an offence to keep any “office or place” for drawing any lottery not authorised by Government, also to publish any proposal to pay money or deliver goods on an event to be determined by drawing, &c.
The English cases will in most cases be applicable to the construction of the term “lottery” in the Indian law. And as to what constitutes “a place,” reference should be made to a subsequent part of this work on betting houses.
Private house or club.
Of course a lottery is equally illegal when carried on in a private house or club as in a public place. The words of section 2, of 42 George III., put this beyond doubt. Thus, in Mearing v. Helling,[[287]] which was the case of an ordinary Derby sweep in a club, it was held that the drawer of the winner could not recover the stakes, the transaction being illegal.
Summary of the Statutes.
To sum up the provisions of the statutes, the following seem to be offences constituted:—
Keeping a lottery.
(1.) Setting up a lottery. This, obviously directed against anyone presiding over a gambling establishment in the same way as subsequent Acts, makes it illegal to keep a bank in a gaming house, or a betting table, as against all comers.
Players or punters.
In all the Acts, it will be noticed that this is the first offence specified.
(2.) The next offence is playing at any of the unlawful games[[288]]; in which matter the Lottery Acts differ from the Acts against gaming and betting houses. The leading provision in this matter is section 3 of the Act of William III., which is perfectly general in its terms. First it speaks of playing, &c., at “the said lotteries.”
If the Act had stopped there, it might have been contended that the players were only liable where the lottery was of the kind mentioned in section 2 of that Act; i.e., where there was somebody, as it were, holding the bank as against the rest; but the Act further goes on to say, “or other lotteries.” These words seem quite wide enough to include the common case of members of a club combining together to make a Derby sweep, which is quite a distinct case from a man getting up a lottery and inviting others to gamble with him; and so it seems to have been held in Mearing v. Helling.[[287]] See 12 George II., c. 28, s. 3.
However, it is not very likely that the law would be enforced in such a case; as we have seen above, the penalties could only be recovered at the suit of the Attorney-General. It seems clear also that the term “common nuisance,” “rogue and vagabond,” only applies to the case of a man who sets up a lottery; it does not apply to the adventurers.
(3.) Advertising lotteries at home or abroad.
Tickets.
(4.) Issuing or selling tickets at home or abroad.
Agent or stakeholder.
(5.) It is clear that any one acting as agent for another in a lottery is equally guilty of “maintaining,” “setting-up,” or “exposing;” probably a stakeholder could be made liable as “aiding and abetting” within section 4 of 42 George III., c. 119.
Foreign lotteries.
(6.) With regard to foreign lotteries, the offences constituted are: (a) Setting up, or selling tickets for, lotteries by virtue of a grant from any foreign power. 9 Geo. I., c. 19. (b) Issuing tickets for numbers in foreign lotteries, and setting up duplicates of such lotteries. 6 Geo. II., c. 35. (c) Selling tickets for any lottery authorised by any foreign power, or in any lottery unless authorised by Act of Parliament, and publishing scheme for the sale of such tickets. 4 Geo. IV., c. 60, s. 41. (d) Publishing any advertisement relating to the drawing of any foreign lottery, or to the sale of tickets therein. 6 & 7 Wm. IV., c. 66.
In MacNee v. Persian Investment Corporation[[289]] the defendant company was formed for the purpose (inter alia) of carrying into effect an agreement, whereby the defendant company were to secure a monopoly of all operations in Persia relating to loans redeemable by drawings with bonuses and to lotteries, the promotion of lottery companies, and the sale of lottery tickets. The defendants’ prospectus stated the main object of the company to be to promote lottery loans on the lines in vogue on the Continent, and that five issues would be made annually in Persia. Held that the agreement was not illegal within 9 Geo. I., c. 19, which statute (semble except as to the sale of tickets) only applied to lotteries in this country. Nor was it within 6 & 7 Wm. IV., c. 66, seeing that it was a mere general intimation as to future lotteries, not an announcement of any particular lottery. It should be observed that it was consistent with the agreement and the prospectus that all the operations of the company should be conducted in Persia.
What amounts to a lottery. Allport v. Nutt Sweepstakes.
The following cases show what will constitute a lottery within the meaning of the Acts:—
In Allport v. Nutt[[290]] plaintiff sued for £100, having subscribed £1 to an adventure on the terms that a certain race being about to be run, the name of each of the horses entered for the running should be put on a separate card, and that all should be mixed up in a box; and the same with the names of the subscribers, which were put into another box; that one card should be drawn out of the horse box, and then one card out of the other. The person whose name should be drawn out after the horse which should afterwards win the race should win £100. Defendant pleaded that the transaction amounted to a lottery, or, in the alternative, to a wager under the Statute of Anne. In answer to this, plaintiff urged that the Lottery Acts only contemplated cases where unfair advantage was taken, relying for this argument on the recitals contained in the Statute of William III.
Suggested distinction between lotteries and sweepstakes.
It was further argued that this transaction was a sweepstakes, and not a lottery. “The difference” (argued Serjeant Byles) “between a lottery and a sweepstakes is this: in a lottery, the party getting it up receives from the purchasers of tickets more than the value of the prizes; whereas in a sweepstakes all the money obtained from the subscribers is paid over to the winners; the party to whom the subscriptions are paid is a mere stakeholder.”
Argument that lotteries for legal horse-race not illegal.
It was also contended that a lottery to be determined by the event of a legal horse-race was not prohibited; that “all the Lottery Acts contemplate a scheme whereby the actor is attempting to enrich himself at the expense of the community. The transaction in this case is nothing more than betting on a legal horse-race, no single individual staking more than £1.”[[291]] But the Court overruled all these arguments.
The words “all other lotteries,” and “any other lottery whatsoever,” used in the statutes, were wide enough to take in the present case, thus embracing what are commonly known as sweepstakes. “The mischief,” says Cresswell, J., “intended to be remedied is, the introduction of a spirit of speculation and gambling, tending to the ruin and impoverishment of families, and not, as suggested, the gain acquired by the individual. Suppose a horse were sold by tickets amounting in the aggregate to the true value, would not that be a lottery?”
Gatty v. Field
This case was followed in Gatty v. Field,[[292]] where sums of 15s. were deposited by subscribers with a secretary previous to a horse-race. The name of each horse entered for the running was put on a separate card; these cards were mixed up in a box; the names of the subscribers were then written on other cards, and mixed up in another box. Cards were drawn alternately out of the horse box and out of the other box, just in the same way as in Allport v. Nutt; the winner being also determined in the same way. Held that this was illegal as a lottery.
Distribution of presents at entertainment.
In Morris v. Blackman,[[293]] an attempt was made to evade the law by setting up a lottery under the guise of distributing presents gratuitously and capriciously among the audience. Defendant kept a shop in the King’s Road, Brighton; in the window of which watches, pieces of plate, and other articles were exhibited, with a placard: “These presents, with others, will be given away by W. Morris at the conclusion of his entertainment at N. Rooms, Brighton, to-night and every evening during the week.” There was also a notice that tickets could be had within. A witness purchased of Jeffs, Morris’ assistant, who was a co-defendant, a ticket for a seat, and received a programme, in which it was stated, “at the conclusion of the entertainment Mr. Morris will distribute amongst his audience a shower of gold and silver treasure on a scale without parallel; besides a shower of smaller presents, which will be impartially divided amongst the audience and given away.” At the close of the entertainment, a quantity of these “presents” were placed on a table. Morris took up a butter-cooler, and awarded it to the occupier of seat 345. Other “presents” were distributed in the same way, the number of a seat being sometimes called out which had no occupier.
Held that as a question of fact the magistrates had rightly decided that this was a mere contrivance to conceal what was really a game or lottery within 42 George III., c. 119. Per Pollock, C.B.: “I have no doubt that not one of the audience had the least notion that the proprietor was to give the articles to any person he pleased: but that every one thought he had a chance of winning.”
Companies distributing benefits by lot.
In some of the cases, it has been sought to impeach the schemes of companies which contemplate the distribution of dividends or other benefits by lot.
Thus in O’Connor v. Bradshaw,[[294]] the objects of the Company were to raise subscriptions in small sums, to purchase land, erect dwellings thereon and allot them to its members on such terms as should enable them to become freeholders and obtain other privileges according to the number of shares for which they subscribed. Their right to obtain these privileges was not absolute, but depended on the result of a ballot according to which a small number only of the subscribers could obtain present possession of houses, &c., and the proportion of those who had obtained them during five years was very small.
The Lord Chief Baron was of opinion that this scheme constituted a lottery.
Baron Parke was of another opinion, thinking that the case came within section 11 of 12 George II., c. 28. He also put another illustration: “Suppose a number of persons were to buy a large collection of pictures some of which far exceeded others in value, might it not be decided by lot who should have the first choice?” But as the company was illegal on another ground, this point was not decided.
Sykes v Beadon.
The next case of this kind is Sykes v. Beadon.[[295]] The association was formed on the principle of investing the subscriptions of the members and dividing the capital fund and profits among themselves by means of certificates convertible by annual drawings by lot into preference dividend bonds bearing interest with a bonus.
Building societies distinguished.
The Master of the Rolls without deciding the point finally, said (p. 185), “I have grave doubts whether this association is not illegal, as being within the Lottery Acts. Building societies are in a different position—they are loan societies. In an association such as this, it is not a case of loans to be returned, but of subscriptions to be divided. The subscriptions are to be divided among the subscribers by drawings by lot, and the prize is a bond with a bonus.” (At p. 190) “The holders of certificates are persons who subscribe money to be invested in funds which are to be divided among them by lot and divided unequally. That is the persons who get the benefit of the drawings get a bond bearing interest and a bonus which gives them different advantages from the persons whose certificates are not drawn, and it depends upon chance which gets the lesser or the greater advantage. It is, therefore, a subscription by a number of persons to a fund for the purpose of dividing that fund between them by chance and unequally.
“If that is not a lottery it is very difficult, at all events to my mind, to understand what a lottery is. It is called a division by lot, which means lottery. It says that the selections of certificates shall be by lot, and that is to be done in the ordinary way, by chance, and the benefits, as I said before, are unequal.”
The next company which it was sought to bring within the Lottery Acts was the Mutual Society—a sort of building society.[[296]] |Wallingford v. Mutual Society.| The objects of this society were to accumulate capital by means of monthly subscriptions from members to advance capital to the members in rotation, to secure payment of such advances, and to divide profits among the members. The mode of operation was to obtain subscriptions from members, to advance them money, at interest, upon certificates of appropriation. Such certificates should be given to every member on joining the society, and should certify his right to receive advances and a share of profits. Holders of life certificates were entitled to tontine bonuses. An “appropriation” or advance was to be made according to the number of certificates held by the member successful in obtaining the appropriation.
Appropriations were to be allotted in two ways, the first and every fourth one thereafter by drawing, free of any premium or interest, while those intermediate appropriations were allotted to the member or members tendering the highest premium for the same respectively. Appropriations were to be repaid by quarterly instalments.
It was urged that the constitution of this society was illegal under the Lottery Acts, as the benefits of the society were to be given to the members by drawings.
The Court were unanimous in holding that the society was not within the Lottery Acts. Per Lord Selborne: “One of those Acts plainly, on the face of its recitals (the enacting part not departing from the recitals) had reference to gambling transactions only; and in my judgment this was not a gambling transaction within the meaning of that Act.” The other had reference to persons who kept lottery offices at which the public were invited to pay for lottery tickets; and that Act could have no application to this case.
Per Lord Hatherley: “If this were held to be a lottery, nearly every building society and a great many other societies framed upon a similar footing might be found to fall within the enactments against lotteries.”
Conflict between the two cases.
It does not seem easy to reconcile the dicta of the Master of the Rolls with the decision of the House of Lords in the above case. It is true the Master of the Rolls draws the distinction in the case of building societies that in them it is a case of loans to be returned and not of subscriptions to be divided. At the same time in both the cases seem to stand on this common ground—that certain unequal benefits of the society were to be distributed by lot or chance. Since this decision of the House of Lords it must be taken that there is nothing illegal in a company or partnership distributing dividends or profits by drawing lots. In Smith v. Anderson 15 Ch. D., 247, it was admitted that Sykes v. Beadon was overruled by the Wallingford case (but see post for the suggested text of a lottery).
No defence that all present get some benefit.
In two cases it was contended that no scheme could amount to a lottery in which the holders of the tickets all get some value for their money, the amount or value being uncertain; but in both it was held that the element of uncertainty was sufficient to bring them within the Acts.
R. v. Harris.
In Reg. v. Harris[[297]] defendant announced a bazaar to be conducted according to the principles of the Art Union. 5,000 tickets of 1s. each were to be sold; bonuses to the amount of £250 were to be distributed by lot. Every holder of a ticket got some bonus, but some bonuses were more valuable than others. Held by M. Smith, J., that the fact that every body got some bonus did not make it the less a lottery.
Taylor v. Smetten.
So in Taylor v. Smetten.[[298]] Defendant erected a tent, in which he sold packets containing 1 lb. of tea each. In each packet was a coupon entitling the purchaser to a prize, and this was publicly stated by the defendant before the sale. The purchasers were told to come next morning for their prizes, the nature of which were unknown to them. It is not stated in the report whether the prizes were drawn by lot, or whether they were awarded at the caprice of defendant. Held that this constituted a lottery. Hawkins, J., says: “If the coupon alone sealed up had been offered for sale, the purchaser taking his chance whether it represented a pen or a silver pencil case, or if a number written on a slip of paper were sold entitling the purchaser to some article the name of which was written against a corresponding number in an undisclosed list, could any one doubt these would have been lotteries? To use it is utterly immaterial whether a specific article was or was not conjoined with the chance.”
Advertisement not necessary.
Nor is it essential that the nature of the prizes distributable should be publicly announced or advertised if the scheme itself is in the nature of a lottery. Hunt v. Williams.[[299]]
Racing coupons.
In Caminada v. Hulton[[300]] the legality of the racing coupons came before the Court. The case was of the ordinary kind, the defendant, to increase the sale of his paper, appended to each copy a coupon which the purchaser might, if he chose, fill up with the names of horses he thought likely to win one or more races, according to the conditions, and those persons who should be successful in selecting a given number of winners were to be entitled to a prize. It was held that this was not a lottery seeing that the competitors selected their own horses; there was no distribution by lot. This case will be noticed again in the chapter on Betting Houses.
Suggested test of a lottery.
It is suggested, not without some diffidence, that the following considerations form the test of whether a transaction is or is not a lottery. There must be an agreement or scheme contemplating that in consideration of subscriptions paid by the adventurers certain property (be it the fund subscribed or otherwise) is to be allotted to some one or more exclusively of the other adventurers, or distributed unequally among them; such allotment or distribution to be determined by lot. But it would seem material to notice:—
(1.) The agreement may be amongst the subscribers themselves, as in the case of a sweepstakes, see Allport v. Nutt,[[301]] or by the subscribers with a person who is getting the lottery up, perhaps for his own profit.
(2.) It must be part of the scheme that some of the adventurers should win and others should lose, as Lord Selborne observed in Wallingford v. The Mutual Society, that the statutes have reference to gambling transactions only. This is as in wagers, vide sup. p. 32.
(3.) The distribution of the prizes must be by lot or chance, herein differing from a wager.
(4.) The distribution of the prizes must be in consideration of property subscribed by the adventurers out of property belonging to them individually. There would appear to be nothing contrary to the Lottery Acts in joint owners dividing their property by lot. Sec. 11 of 12 George II., c. 28, specially exempts partition by lot among joint owners of land. But this is quite a different idea from making a contribution for the purpose of a division by lot.
(5.) The distribution of the prizes by lot must be the main substantial part of the scheme to which the adventurers subscribe. This may serve as the true explanation why companies whose regulations provide for a distribution of profits by lot are not within the Lottery Acts. In these cases we have commercial undertakings, whose main and primary object is to make money in a legitimate way, whether by profitable investment, as in Sykes v. Beadon, or trade enterprise. The distribution of these profits is, though important, purely secondary. It does not seem to be, as suggested by the Master of the Rolls in that case, a case merely “of subscriptions to be divided”; the profits had to be earned first. No doubt the line between the cases may sometimes be very fine. Several people agree to subscribe to buy a mare and then to raffle for it. This would seem clearly to be a lottery,[[302]] though secus if the agreement to raffle were made after the purchase. But suppose the agreement were to buy several mares for the purpose of breeding from them and to raffle for the offspring; this case would seem to stand on the same footing as the case of the companies; the primary object is the breeding of horses.
Bazaars
The question never seems to have been raised whether bazaars conducted on the now somewhat common system of selling things by drawing of lots do not infringe the Lottery Acts. Such bazaars are usually held for the purpose of raising money for a charity. The method of operation in many cases is for a certain number of subscribers to pay down a specified sum of money each, and then articles of a different value are distributed among those subscribers, by drawing of lots, some of the articles being of greater value than others, every subscriber getting something for his ticket. It is clear from the authorities above quoted, that the latter circumstance does not take the case out of the Lottery Acts. |“Fish ponds.”| So also articles are sold at these bazaars by raffle, or by a more modern institution called a “fish pond,” in which a quantity of articles of unequal value, and all under cover, are placed together; and the subscribers, with a sort of fishing rod and line and a hook attached at the end, endeavour to fish up some article, the value of which of course is uncertain until taken out of its cover. It seems difficult to avoid the conclusion that if such bazaars are conducted on any of the systems above alluded to they infringe the provisions of 12 George II., c. 28, section 1., which prohibits the sale or exposing for sale of goods, &c., by any method or device to be determined by lot or drawing, thus prohibiting any lottery being carried on under the guise of a sale. Section 3 of the same Act seems to apply to any person buying at any such sales—it inflicts a penalty of £20 on any adventurer in the games forbidden by the Act, and on any person taking part in such lottery or sale. Whether it would be wise or tolerable that the law should be enforced in every case in all its strictness is another question, but it would be wise for persons who get up these bazaars, even with the most charitable motives, and ladies who take stalls therein, to consider the Lottery Acts.
Lotteries illegal, not merely void as agreements.
Of course as the statutes have imposed penalties for setting up lotteries it follows that an agreement which has for its object any transaction which amounts to a lottery or of which such transaction forms any part is tainted with illegality. |Results of illegality.| The chief results of a contract being illegal have been noted above in treating of bills and securities given for an illegal consideration. In some few cases the application of these rules to lottery transactions is illustrated.
Whole transaction tainted.
In Fisher v. Bridges[[303]] defendant agreed to sell to plaintiff a piece of land at a certain price, for the purpose, as plaintiff well knew, that the land should be exposed for sale by lottery contrary to the statute.[[304]] Defendant having paid only a part of the purchase money after the sale was over, entered into a covenant with plaintiff to pay the balance. The defendant pleaded that the deed was given for an illegal consideration, viz., the sale by lottery.
The Court of Queen’s Bench held that as the deed was made after the illegal transaction was over, and did not appear by the plea to have been entered into in pursuance of the previous illegal agreement, it was not affected with the illegality; the grounds of their decision being that the purchase money and the sum secured by the bond were not necessarily identified.
But the Court of Exchequer Chamber reversed this judgment on the ground that “the covenant was given to secure the payment of a part of the purchase or consideration money for the lands the subject of the agreement, and no action could have been brought to recover the purchase money of the lands. The covenant springs from, and is a creation of, the legal agreement; and as the law would not enforce the original illegal contract, so neither will it allow the parties to enforce a security for the purchase money, which by the original bargain was tainted with illegality.
Money paid in respect of a lottery.
Another consequence of lotteries being illegal is seen in the right of the person who has paid money in respect of it to recover it back. Where the money has been deposited with a stakeholder, the series of cases ending with Diggle v. Higgs,[[305]] given under “Wager Contracts,” show that notice can in any case be given by the depositor to recall the money before it has been paid over by the stakeholder.
But where the deposit has in the first place been made with a person who sets up the lottery different considerations prevail. The general rule is that where money has been paid to a person in order to effect an illegal purpose with it the person making the payment may recover the money back before the purpose is effected. But where the illegal purpose has been fully or partially executed it cannot be recovered by the person who paid it, the rule “in pari delicto, etc.,” has been held to apply.[[306]] Therefore under the first part of the rule above stated it is clear that the depositor can always recover his money before the lottery comes off.
It seems however in a lottery to be the same as in the case of a wager, a depositor cannot sue the stakeholder without previously giving notice to him that his authority to pay the money over to the winner is determined.[[307]]
So in Gatty v. Field[[308]] where the plaintiff had deposited 15s. as subscriber to a lottery and sued the stakeholder as winner. |Demand necessary.| It was held that to entitle him to recover his own subscription it was necessary for him previously to demand it back from the stakeholder and so put an end to the illegal transaction.
But now to consider the case of the lottery having come off. The rule of “in pari delicto, etc.” does not of course apply where the delictum is not par.[[309]] Thus, in Browning v. Morris,[[310]] it was held that money paid by way of premium for the insurance of lottery tickets to the keeper of a lottery office was recoverable on the ground that the various statutes (at least so it would seem[[311]]) authorising the raising of money by State lotteries forbade the keeping of offices for the insurance of tickets, but imposed no penalty on the insurer—the statute had “marked the criminal.” It seems, however, that in the middle of the judgment it transpired that the plaintiff himself was a lottery office keeper, and therefore himself “in pari delicto”; consequently a non-suit was entered.
It would seem, therefore, that where a person sets up or maintains a lottery, receiving money on deposit in respect thereof the subscribers can at any time recover what they have paid. It is true that section 3 of the Act of William III. and section 3 of 12 Geo. II., c. 28 impose penalties on the adventurers. Still the statutes were passed for the protection of the latter, and the heavier penalty is imposed on the maintainer. In the case, however, of a sweepstakes, which is simply an agreement between the adventurers,[[312]] the same considerations do not seem to apply.
It is also clear both upon principle and on the authority of Allport v. Nutt[[313]] that no action will lie to recover money alleged to be due as the winnings of a lottery. |Illegal partnership or society.| In the case of Sykes v. Beadon,[[314]] the Master of the Rolls held a society to be illegal partly as infringing the Companies’ Acts and partly as infringing the Lottery Acts. His lordship distinctly opposed the dicta of Lord Cottenham in Sharp v. Taylor[[315]] to the effect that a suit could be maintained by a member of a firm formed for an illegal object for an account of profits realised by such illegal business on the ground that the Courts by affording such remedy in no way facilitated the illegal object, which had already been accomplished. The Master of the Rolls thought it made no difference that the illegal transaction was closed. “It is no part of the duty of a Court of Justice to aid either party in carrying out an illegal contract, or in dividing the proceeds arising from an illegal contract.”
On the other hand it will be remembered that in Beeston v. Beeston[[316]] the principle of Sharp v. Taylor was spoken of with approval: still the exact question under discussion was not then raised, and it is submitted that the remarks of Jessel, M.P., suggest the true principle. We shall deal with this subject in greater detail when we come to discuss partnership in Gaming Houses. See p. 162.
Proceedings in lottery cases.
There are three different ways in which offenders against the Lottery Acts can be proceeded against:—
Indictment for a nuisance.
(1.) By indictment for a nuisance, the keeping of lotteries being declared to be a nuisance both by the Statutes of William IV. and 42 Geo. III., c. 119.
In Reg. v. Crawshaw[[317]] defendant was indicted under 10 & 11 William III., c. 17, section 1, and also under 42 Geo. III., c. 119, section 1, for a common nuisance in keeping a house lottery called a littlego. The evidence showed that the defendant advertised drawings and sold tickets for a lottery, in respect of which prizes were drawn and awarded to the winners. It was argued for the defendant that an indictment for a nuisance under section 1 of the Act would not lie, because by section 2 of both Acts, a specific penalty had been prescribed for setting up lotteries after the dates mentioned therein, whereby the remedy for a nuisance had been abrogated. But the Court held on the authority of Reg. v. Gregory[[318]] that whenever Parliament has declared an act to be a nuisance, the party may be indicted, and that this form of proceeding had not been abrogated by the provisions in section 2 of each of the Acts.
Penalty of £500. Jurisdiction of justices taken away.
(2.) By section 2 of 42 Geo. III., a penalty of £500 is imposed for keeping any office or place to exercise any kind of lottery.
By statute 27 Geo. III., c. 1, the jurisdiction of justices of the peace in the matter of lotteries was curtailed, but in the case of Reg. v. Liston[[319]] it was held that their jurisdiction was only taken away in the case of State lotteries.
But in Reg. v. Tuddenham,[[320]] it was held that whatever may have been the effect of 27 Geo. III., c. 1, on which Reg. v. Liston was decided, at any rate, |46 Geo. III., c. 48.| since 46 George III., c. 48, s. 59, all proceedings for the recovery of penalties under 42 George III., c. 119, must be taken in the name of the Attorney-General and not before magistrates, whether in the case of a State lottery or otherwise.
Newspaper proprietors.
By 8 and 9 Vict., c. 74, all proceedings against newspaper proprietors, &c., for publishing advertisements relating to lotteries, must also be taken in the name of the Attorney-General.
Rogue and vagabond.
(3.) The third alternative, which, perhaps, is the proceeding most likely to be adopted in ordinary cases as being the least cumbrous, is to prosecute the offender as a rogue and vagabond under 42 George III., c. 119, s. 2.
By the Summary Jurisdiction Act, 1879, it is within the discretion of magistrates to inflict a fine in lieu of imprisonment on persons convicted as rogues and vagabonds. In Taylor v. Smetten,[[321]] where the magistrates had convicted the defendant and fined him 20s., the Court intimated a doubt as to whether the conviction was properly made. “The form of the conviction is not before us. If the appellant was convicted as a rogue and vagabond, and the justices imposed a fine of 20s. in lieu of imprisonment, as they are entitled to do under 42 and 43 Vict., c. 49, s. 4, then we think the conviction was right. If, however, without convicting him as a rogue and vagabond, they simply convicted him of keeping a lottery, and fined him 20s. for so doing, under 42 George III., c. 119, s. 2, then we think the Statute 46 George III., c. 148, s. 59 (3), applies, and the conviction could not be upheld.” Reg. v. Tuddenham.
This proceeding, however could not be applicable as against the adventurers in a lottery: it is only available against persons setting up or keeping the lottery, employing others to do so, or aiding and abetting (42 Geo. III., c. 119, s. 4) others in doing so.
The powers conferred by section 4 on justices to grant warrants, etc., have already been set out.
Section 6. Offenders may be apprehended on the spot by any person and carried before a justice of the peace.
Art Unions
A special exception has been made by statute in favour of art unions, or associations formed for distributing works of art by lot, a method of proceeding which would be probably held to infringe the Lottery Acts were it not for the fact that they are legalised by 9 & 10 Vict., c. 48. This Act provides that all voluntary associations constituted for the distribution of works of art by lot are to be deemed lawful associations, and the members and subscribers freed from all penalties under the Lottery Acts. Provided that Royal Charter be first obtained for the incorporation of such association, and the instrument constituting such association, together with its rules and regulations, be approved by the Privy Council.
By 18 Geo. II., c. 34, s. 7, no privilege of Parliament can be pleaded to a charge of infringing the Lottery Acts.
CHAPTER IV.
GAMING HOUSES.
In Bacon’s Abridgment (title “Gaming”) it is stated “that by the Common Law the playing at cards, dice, etc., when innocently practised, and as a recreation the better to fit a person for business, is not at all unlawful; yet if a person be guilty of cheating, as by playing with false cards, dice, &c., he may be indicted for it at Common Law and fined and imprisoned. So, also a common player at hazard and using false dice may be indicted for it at Common Law and set in the pillory. An information against a person using the game of cock-fighting may be at Common Law. Also all common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood.” Instances are then given of cases in which the Courts have relieved against liabilities incurred by excessive gaming.
In Hawkins’ Pleas of the Crown, Book I., cap. 75, section 6, it is said: “all common gaming houses are nuisances in the eye of the law; not only because they are great temptations to idleness, but because they draw together great numbers of disorderly persons.”
Blackstone (vol. iv.) who classifies gamblers as (1) those who are led into it by passion, (2) those who play from a greed of gain, (3) those who are drawn into it by their surrounding, states the legal objections to gambling as tending to promote idleness and debauchery among the lower classes and among the upper classes frequently attended with ruin and desolation.
It is clear from this statement that the essence of illegality at Common Law was fraud and excess, and that all establishments which were kept for gaming purposes necessarily led to excess. This being so, it would seem that in point of principle, the Statutes 16 Charles II. and Anne and 18 Geo. II., of which mention has been made in Chapter I. of this work was only declaratory of the Common Law, seeing that they only dealt with fraudulent and excessive gaming, though no doubt they laid down particular tests which did not exist before, as to what should constitute excessive gaming.
Gaming houses illegal at Common Law.
In Reg. v. Rogiere[[322]] defendants were indicted “for that they did unlawfully keep and maintain a certain gaming house, and in the said common gaming house did cause and procure divers idle and ill-disposed persons to frequent and come to play together at a certain unlawful game called Rouge et Noir, for divers large and excessive sums of money.” The Court held that the keeping a house of this description was an offence at Common Law—Holroyd, J., adding that in his opinion it would have been sufficient merely to have alleged that the defendants kept a common gaming house, |25 Geo. II., c. 36, sec. 5.| The Statute 25 George II., c. 36, s. 5, confirmed this view of the Common Law; for after reciting the prevalence of disorderly houses, enacts, that to encourage prosecutions against persons keeping gaming houses, &c., it should be lawful for any constable, upon information from two inhabitants of the district, to take proceedings as therein specified. |2 & 3 Vict., c. 47, sec. 48.| Finally, in 2 & 3 Vict., c. 47, s. 48, we find an enactment that the Commissioners of Police in the Metropolis may authorise constables to enter houses suspected of being used as common gaming houses and arrest persons found therein. Provided that nothing should prevent the prosecution by indictment of any person having the care or management of any gaming house.
Both these statutes clearly regard the keeping a gaming house as an indictable offence; both prescribe certain methods of procedure; one even goes so far as expressly to preserve the Common Law remedy. It is, however, remarkable that in none of the writers or cases is any definition of a common gaming house attempted.
Test of a gaming house.
It seems, however, clear from the dicta of text writers just quoted and also from late authorities that any house where a number of people habitually congregate for gaming purposes where the play was excessive, either in the sense of being ruinous, or as tending to become a sole absorbing interest to the players and to distract them from the ordinary business of life, or where the gaming led to turbulence and disorder, such house, even if in form a mere ordinary social club, would be a common gaming house.
Gaming.
It seems now to be settled that to constitute gaming at all there must be either playing some unlawful game or playing a game, whether of skill or chance, for money. Reg. v. Ashton, 1 E. and B. 286, Dyson v. Mason, 22 Q. B. D. 351.
Houses for unlawful games.
There is also a series of statutes dealing with houses kept for playing unlawful games.[[323]]
Thus, 33 Henry VIII., c. 9, prohibited the keeping of any common house or place of dicing table or carding, or any other manner of game then prohibited or thereafter to be invented. 13 George II., c. 19, s. 9, inflicts penalties on any person keeping any office, table, or place for the games of passage or games with dice, except backgammon. 18 George II., c. 34, prohibits the keeping of any house, room, or playing roulet, or roly-poly, or any game with cards or dice already prohibited by law. It is stated in Hawkins (Pleas of the Crown, I. 725) that these statutes did not aim at occasional gaming for recreation at an inn which was not kept for the purpose. The games, too, were only unlawful sub modo, and were not prohibited in a man’s private grounds. Finally, there are the provisions against keeping houses for lotteries, the principal statute on this subject being 42 George III., c. 119, which, as has been shown above, makes it penal to keep any “office or place” for “Littlegoes.”
Unlawful games.
In some few cases particular games have been declared unlawful.
Thus the Statute 12 Richard II., c. 6, made tennis, football, quoits, dice, unlawful when played by artificers and labourers. But this Statute was repealed by Statute 21 Jas. I. Section 16, of 33 Henry VIII., prohibited the same games with the addition of cards, dice, talles, and bowls, to labourers and mariners or any serving man.
18 Geo. II., c. 34.
By 2 George II., c. 28, power is given to justices to commit all persons to prison found playing at any unlawful game.
12 George II., c. 28, s. 2, made the games of faro, ace of hearts, basket and hazard, illegal as lotteries, inflicted the same penalties as for setting up a lottery, and £50 on the players.
The Statutes 13 George II., c. 19, and 18 George II., c. 34, in adding other games to the list, |Players.| expressly imposed the same penalties on the players or adventurers in the games prohibited.[[324]] As has been suggested above, in dealing with these matters under the head of lotteries, to which they more properly belong, it is difficult to escape the conclusion that persons playing a friendly game of roulette in a private house or a club would be liable under these statutes, although by 46 George III., c. 148, proceedings must be taken in the name of the Attorney-General. From the recent decision in the case of Turpin v. Jenks,[[325]] that any which is a game of chance or of chance and skill combined is now an unlawful game, if not in the sense of being penal, at any rate so as to make it unlawful to keep a house for the purpose of such games. There would then seem to be three legal consequences of a game being unlawful;
(1) Where the statute inflicts a penalty;
(2) A house kept for the purpose is constructively a common gaming house or primâ facie evidence of it.
(3) No prize to be awarded to the winner can be recovered, as we saw when we were discussing section 18 of 8 & 9 Vict., c. 109.
All these three subjects, keeping gaming houses, keeping houses for unlawful games, and playing at unlawful games, |8 & 9 Vict., c. 109.| were in some measure dealt with by the important Statute 8 & 9 Vict., c. 109, by s. 18 of which, it will be remembered, all wagers were declared void. This statute now forms the basis of the modern legislation on the subject of gaming houses.
Section 1 of this Act repeals so much of the Statute of Henry VIII. as declared any game of mere skill to be an unlawful game.[[326]]
With respect to gaming houses, &c., it deprives noblemen of the power of granting licenses to their servants for keeping a common gaming house or playing any unlawful games. With respect to the distinction which seemed to exist between keeping a common gaming house and keeping a house for unlawful games, it is clear that the two offences are by this statute brought under one category. |Sec. 2. Evidence of a gaming house.| For section 2, after reciting that doubts had been expressed whether houses open to subscribers only were common gaming houses, enacts that in default of other evidence proving any house to be a common gaming house, it shall be sufficient in support of any indictment or information to prove: (1) That the house or place is kept or used for playing therein any unlawful game. (2) That a bank is kept there by some of the players exclusively of the others. (3) That the chances of any game played therein are not alike favourable to all the players.
So that by this enactment a house kept or used for playing unlawful games is placed on the same footing as a common gaming house, and the owner or manager punishable accordingly.
By section 4 of the Act a penalty of £100 or six months’ imprisonment is inflicted on the owner or keeper of every common gaming house, or the person having the care or management thereof, and also every banker, croupier, and other person conducting the business of any common gaming house.
Sections 10 to 13 relate to the granting of billiard licenses—it having always been doubtful whether billiards were within the Statute of Henry VIII.
17 & 18 Vict., c. 38.
The Statute 17 & 18 Vict., c. 38, is the next statute on the subject of gaming houses, and in addition to some stringent provisions designed to prevent the Act 1845 being evaded or rendered a nullity, it introduces an offence termed “keeping a house for unlawful gaming,” for which a penalty of £500 is inflicted.
After reciting the powers given to justices out of the Metropolis, and to the Commissioners of Police within the Metropolitan District by 8 & 9 Vict., c. 109, and reciting that keepers of gaming houses contrive by fortifying the entrances to keep officers out of the houses until the instruments of gaming have been removed, provides:—
Section 1, that any person who shall obstruct any officer authorised by the Act 8 & 9 Vict., c. 109, to enter a gaming house, or who, by any bolt, bar, or chain, or other contrivance shall secure any external door or internal door of, or means of access to any house, room or place, so authorised to be entered, or shall by any other contrivance obstruct the entry authorised as aforesaid to, of any constable or officer, shall be liable to a penalty of £100, or in the discretion of the Court to be imprisoned with or without hard labour for six months.
Section 3 imposes a penalty of £50 or three months’ imprisonment, on any person found in gaming houses by officers entering as aforesaid, and refusing to give his name and address, or giving a false name and address.
Section 4. Any person being the owner or occupier of any house, room, or place, or having the use of the same, who shall open, keep or use the same for the purpose of unlawful gaming being carried on therein; and any person being the owner or occupier of any house or room, shall knowingly and wilfully permit the same to be opened, kept, or used by any other person for the purpose aforesaid, and any person having the care or management of, or in any manner assisting in conducting the business of any house, room or place kept or used for the purposes aforesaid, and any person who shall advance or furnish money for the purpose of gaming with persons resorting thereto, is liable to a penalty of £500 or twelve months’ imprisonment.
The following is a summary of the different offences respecting Gaming Homes:—
Offences under the Gaming House Acts.
(1.) Being the owner or keeper of a common gaming house or permitting a house to be so used.
(2.) Having the care or management or conducting the business of the same as to what comes under this provision.
Section 4 of the earlier Act expressly mentions the banker or croupier of such a house. It is presumed that the decision in Rex v. Cook,[[327]] which arose under the Betting House Act (see post), would apply to this section, viz., that the law only extends to persons taking a share in the illegal part of the business.
In Turpin v. Jenks the committee in whom, by the Rules of the Club, the management of the club was vested, were held liable as managers.
(3.) Obstructing officers authorised to enter a house under the provisions of section 3 or section 6 of 8 & 9 Vict., c. 109—penalty £100 or six months’ imprisonment, section 1 of 17 & 18 Vict., c. 38.
(4.) Any person found in a gaming house by officers entering under the above power, and giving a false name and address or refusing to give his name and address, is liable to a penalty of £50 or three months.
What constitutes a gaming house.
It is now necessary to inquire what constitutes a common gaming house within these Acts. It must, however, be remembered that persons may be brought within the above provisions concerning resisting officers and giving false names and addresses, even though it may turn out that a particular house be not eventually proved to come within the Acts. The officer’s justification for entry is the magistrate’s warrant, or in the metropolis the direction of the commissioners. So that the owners of a house could not justify any resistance to constables who enter by virtue of the Act, by proving that the house is not a gaming house.[[328]]
The question as to the evidence necessary to prove that a house is a gaming house, is partly answered by the statutes.
Evidence.
Thus, section 2 of 8 & 9 Vict., c. 109, after reciting that doubts had arisen whether houses open to subscribers only were common gaming houses, provides that in default of other evidence it shall be sufficient to prove—(1) That the house or place is kept or used for the purpose of playing therein any unlawful game. The subject, Unlawful Games, has been treated above, page 152. (2) That a bank is kept there by some of the players exclusively of the others. (3) That the chances of any game played therein are not alike favourable to all the players.
By section 8, where any cards, dice, balls, counters, tables, or other instruments of gaming used in playing any unlawful game shall be found in any house, room, or place suspected to be used for a common gaming house, and entered under a warrant or order issued under the provisions of this Act,[[329]] or about the persons of those who shall be found therein, it shall be evidence until the contrary appears, that such house, room or place is used as a common gaming house, and that the persons found therein were playing therein.
By 17 & 18 Vict., c. 38, s. 2, where any constable authorised under 8 & 9 Vict. to enter any house, &c., is wilfully prevented, or obstructed, or delayed in entering in the manner specified, or where any external or internal door of or access to any such house, &c., is found fitted or provided with any bolt, bar, chain, or other means of contrivance for the purpose of obstructing such officers, or for giving an alarm in case of such entry, or if such house is found provided with any means or contrivance for unlawful gaming, or for concealing, removing, or destroying any instrument of gaming, it shall be evidence, until the contrary be made to appear, that such house is used as a common gaming house.[[330]]
Private houses.
It must be remembered that a club or private house may equally be a common gaming house as a public place of resort. This is clear from the recitals of section 2 just quoted. The matter is also put beyond all doubt by the late case of Turpin v. Jenks,[[331]] where Mr. Justice Hawkins says that to hold otherwise would lead to evasion by placing a wide limit on the numbers.
It would appear, also, from the same case that a house or club might still be a common gaming house, if it were kept for the double purpose of social pursuits and gaming, if gaming were one of the objects for which the club was formed, or a house kept open. |Excessive gaming evidence.| It is also expressly laid down that excessive gaming is evidence that a house is a common gaming house. Mr. Justice Smith considering that excessive gaming was unlawful in itself, in spite of the repeal of the provisions of the Act of Anne, and section 8 of 18 George II.
Keeping a house for public billiards.
By section 11 of 8 & 9 Vict., c. 109, any person keeping a house or place for public billiards without a license, or without a victualler’s license for the house, and without the words “licensed for billiards” written outside, is liable to be proceeded against as the keeper of a common gaming house.
In section 4 of the Act of 1854 we find, if not a new offence, at any rate a new phraseology. |Keeping a house for unlawful gaming.| The offence there spoken of is not keeping a common gaming house but keeping a house “for unlawful gaming.” What unlawful gaming consists in is not defined: the Legislature evidently supposing that the terms had already received judicial interpretation. The Act of 1845 and the previous sections of the statutes seemed to refer to common gaming houses; and it will be remembered that section 2 of the earlier Act made the playing of any unlawful game in a house evidence that the house was a common gaming house. It will be seen that the term “unlawful gaming” has just received a construction which places it on the footing of a generalization; embracing the two species of offence, viz., playing an unlawful game and keeping a gambling house. The effect and meaning of the term “keeping a house for unlawful gaming,” has of late been thoroughly discussed in the case of Turpin v. Jenks and others,[[332]] commonly known as the Park Club case. Jenks, the defendant in the Court below, was the proprietor of a club house in Park Place, St. James’, managed by a committee of four members, by whom the other members were elected. The subscribers were 270 in number, each paying a yearly subscription. By the rules of the club hazard and games with dice were forbidden, and points at whist were not to exceed £1. All games were to be played for ready money. It was proved by the night steward of the club that a game called baccarat was played nightly among the members. That play commenced at 4.30 p.m., and continued until 7.30, and began again at 10.30 and lasted till 3 or even 8 a.m. Baccarat is a fair game among the players, the chances being equal; it is a game both of skill and chance, but chiefly of chance, and there are no advantages to be derived except from skill or luck. It is played with three packs of cards, and banks are formed varying in amount from £50 to £1,000, the whole of which might be lost or won in about twenty minutes. It was from these banks that the profits of the proprietor, calculated to amount to at least £10,000 a year, were derived. There were no other profits made in the club except the banks; cigars and wine were sold at cost price; the kitchen was carried on at a loss; the subscriptions were barely enough to meet the club expenses. The number of members was limited to 500. The proprietor, the members of the committee, and some of the players were summoned before Sir James Ingham, at the Bow Street Police Court[[333]] for keeping a house for unlawful gaming, and were all convicted in penalties of varying amounts.
These convictions were affirmed in the Divisional Court, except in the case of the players. Hawkins, J., in giving judgment, said that the real question was whether this house was kept for the purpose of unlawful gaming. There could be no question that gaming was the chief object of the club. The social arrangements were quite ancillary to the gaming purposes. The club rules against gambling, though admirable on the face of them, were really intended to conceal the real objects of the club. Even if it had been a bonâ fide social club, for the double purpose of society and gaming, it would still be within the statute as a house opened and kept for unlawful gaming, provided the gaming that took place were unlawful. The Statute 17 & 18 Vict., c. 38, is not directed against a person who merely keeps a gaming house; it imposes penalties on persons who open or keep a house for the purpose of unlawful gaming, and those who assist in it.
The question then really is whether the gaming for which the house was opened was unlawful.
The magistrate put the matter on too narrow a footing in treating it solely as a question whether the games themselves were unlawful; whereas the statute is directed against unlawful gaming, and not merely against unlawful games. Gaming may be unlawful (1) by reason of the place wherein it is played; (2) by reason of the unlawfulness of the game itself. Now, cards are not unlawful, either at Common Law or by statute;[[334]] but it is illegal to keep a common gaming house, and if cards were played therein that gaming would be unlawful.
Two questions therefore arise: (1) Was this a common gambling house? (2) Is baccarat an unlawful game?
(1.) There could be no doubt that this was a common gaming house, and its practices were of the pernicious tendency alluded to by the different law writers and by the judges in Reg. v. Rogiere. |Club.| It is immaterial that the numbers of the club were limited; all gaming houses are; and if you allow a limit of 500, why not of 5,000? (2) As to the illegality of the game, the statutes, with very few exceptions, do not declare any games to be unlawful except when played by particular persons or in particular places. The earliest of the statutes was 33 Henry VIII., which prohibited any common house or alley being kept for the purpose of cards, or dicing, or any unlawful game then known or thereafter to be invented.[[335]] Some of the provisions of this statute, so far as they affected “games of skill,” were repealed. The test, therefore, seems to be whether a game be one purely of skill or not. Baccarat, therefore, being a game both of chance and skill, must be held to be an unlawful game.[[336]]
The Statutes of Anne and 18 George II., section 8, which laid down tests as to what was excessive gaming (by the former the loss or gain of £10 at one time or sitting, by the latter £10 at one time and £20 within twenty-four hours) were repealed by 8 & 9 Vict., c. 109, section 15, consequently excessive playing is no longer the test of illegality, but it may be some evidence of a house being used as a common gaming house. |The Committee.| His lordship held that the committee were liable for taking part in the management of the club.
The players.
The conviction against the players could not be sustained, though they might have been convicted of playing at unlawful games, but his lordship reserved this question. The words of the statute, “use the same for the purpose of unlawful gaming being carried on there,” only applies to a licensee to carry on the business.
A. L. Smith, J., delivered a judgment to the same effect, differing from Hawkins, J., only in one point, viz., as to excessiveness making a game unlawful. He considered that the dicta in Bacon and R. v. Rogiere were still good law, although the particular statutory limits of legality had been repealed.
It would seem that if the decision in this case were pushed to its utmost limits the law might be enforced in cases where games, though technically “unlawful,” were merely made the means of innocent recreation. It is not difficult to suppose cases in which a club, though it could not possibly be called a common gaming house, might still be, according to the strict letter of the law, a house kept for unlawful gaming, if a game, not being a game exclusively of skill—say, for example, whist—were one of the objects for which a club was formed. But this is only one out of many applications of the saying, “Summum jus, summa injuria.” The case of gaming houses presents no greater absurdity than the law of larceny, according to which the housemaid who abstracts a pin from her mistress’s pincushion is liable to the same punishment as a clerk who robs his master’s till. In the same way any person who gets up an ordinary sweepstakes for the Derby at a club brings himself in strictness within the Lottery Acts; but probably no magistrate would convict such person as a rogue and vagabond, as he might do under the statutes.
Players.
With respect to the players either in gaming houses or at unlawful games, the penal or restrictive provisions of the statutes are neither numerous nor stringent. 12 Rich. II., c. 6, forbad servants, labourers, apprentices, and artificers to play football or dice, but this was repealed by 21 James I., c. 28. 33 Henry VIII., c. 9, s. 16, forbad artificers and labourers to play at the tables, tennis, dice or bowls out of Christmas under a penalty of 20s. This section does not appear to have been totally repealed, except by 8 & 9 Vict., c. 109, s. 1, so far as games of skill are concerned.
The above provisions seem to have been directed against particular classes of persons. With respect to persons found playing in gaming houses, 33 Henry VIII., c. 9, s. 12, imposed a penalty of 6s. 8d. upon them, and s. 14 empowered justices to enter such houses to arrest the persons “there haunting, resorting, and playing,” and bind them over in recognisances with or without sureties. By 2 George II., c. 88, s. 9, this jurisdiction is extended to cases proved by two credible witnesses.
As to excessive gaming, the penal provisions contained in 16 Car. II., c. 7, 9 Anne, c. 14, and 18 George II., c. 34, s. 8, imposing penalties for winning over a specified sum within a given time, are repealed by 8 & 9 Vict., c. 109, s. 15. In Turpin v. Jenks,[[337]] it was held that the players could not be convicted for assisting in the management or business of the house (see ante p. 160.)
In some cases particular games have been prohibited under penalties; see ante at the commencement of the chapter on Lotteries, where these provisions are summarised. It will be observed that the particular game is always specified, there is no general prohibition against games of cards or chance; and the game is in each case prohibited as a lottery.
Lending money for gaming purposes.
It is only necessary to mention very shortly another offence constituted by section 4 of the same Act, viz., advancing or furnishing money for the purposes of such unlawful gaming, which is visited with the same penalty of £500. Of course the money so advanced cannot be recovered (see ante p. 16.)
Illegal partnerships.
With respect to partnership in gaming houses, it would seem to be clear on principle that one partner cannot sue another, nor can a principal sue an agent for an account of moneys won in an illegal adventure. The test adopted in Simpson v. Bloss[[338]] seems to make this clear, viz., does the plaintiff require any aid from the illegal bargain to establish his case?
In case of the partnership in a gaming house, the contract which would have to be proved contemplates the establishment of an illegal gaming house. The case of Sharpe v. Taylor[[339]] seems rather to conflict with this view. It was an action by one co-owner of a vessel against the other to recover a share of the profits earned by the vessel. The vessel was registered in the name of “A,” an American citizen, which seems to have been a breach either of the laws of the United States or of the English navigation laws, as carrying on trade between the two countries, without the real owners of the vessel being registered as such.
Lord Cottenham held that the plea of illegality of the adventure was no answer. Some of the dicta of his lordship’s judgment, pp. 817, 818, seem to countenance the view that a partner or an agent cannot set up illegality as a defence to the claim of a co-partner or principal, so long as the illegal part of the transaction is closed. Possibly, however, the decision can be supported on the ground that the object of the adventure was perfectly legal, viz., the importation of American produce in an English ship, though incidentally the provisions of the English navigation laws were not complied with.
It must be admitted that in Bridger v. Savage[[340]] the Court quoted the dicta of Lord Cottenham with approval concerning the plea of illegality, but that case cannot be considered an authority on the point, as the transaction had relation to betting, and not to any illegal contract. In Sykes v. Beadon[[341]] Jessel, M.R. refers to Lord Cottenham’s dicta with disapproval. At p. 195, “The notion that because a transaction which is illegal is closed, that therefore a Court of Equity is to interfere in dividing the proceeds of the illegal transaction, is not only opposed to principle but to authority; to authority in the well-known case of the highwaymen, where a robbery had been committed and one of the highwaymen unsuccessfully sued the other for a division of the proceeds of the robbery.” At p. 196: “It is not sufficient to say that the transaction is concluded as a reason for the interference of the Court. If that were the reason it would be lending the aid of the Court to assert the rights of the parties in carrying out and completing an illegal contract. If the contract is for the purpose of smuggling, that is an illegal contract, and the Court cannot maintain it, and the Court will not lend its aid to it at all. In my own practice a case occurred in which one of the partners in a gaming house sued the other partner for an account of profits. It did not come on for hearing, because the plaintiff thought better of it, and I am satisfied the bill could not have been maintained; still the assertion of the bill was that the gaming house had been closed, and the plaintiff asked for an account on that footing.”
The dicta of the Master of the Rolls have the support of a judgment of Lord Denman in Mortimer v. MacCallan,[[342]] where Simpson v. Bloss was quoted with approval. “This was in fact a partnership in the profits of an illegal adventure; if the plaintiff had received the whole the defendant could not have recovered his share.”
Illegality cannot be set up by third party.
At the same time a person who has received money payable under an illegal contract, not himself being a party to the contract, cannot plead the illegality. Tennant v. Elliott[[343]] and Russell v. Farmer[[344]] were both cases of this kind. This was the view taken of them by Jessel, M. R., in Sykes v. Beadon,[[345]] and by Crampton, J., in Nicholson v. Gooch.[[346]] Therefore if the partners in a gaming house kept a banking account, it is clear that the banker could be sued for the money.
Agent or Manager.
The same, it is submitted, applies to the case of an agent or manager of such an establishment: he certainly could not sue his principal for reimbursement or salary, Thacker v. Hardy,[[347]] so it is difficult to see why the principal should have a right to an account against his agent for profits. Nearly all cases where Sharp v. Taylor has been approved the real question did not arise, as they were in many cases like Johnson v. Lansley,[[348]] adventures in betting transactions which are not illegal: this matter is dealt with post p. 191.
Cheating at play.
Another offence besides keeping a gaming house dealt with by this statute is cheating at play. By section 17, “Every person who shall by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, or pastime, win from any other person to himself or any other or others any sum of money or valuable thing, shall be deemed guilty of obtaining such money, &c., by a false pretence, and punished accordingly.” In Regina v. O’Connor[[349]] it was held that where persons fraudulently won from another certain property by tossing with coins, that was a “pastime” within the Act if it was not a “game.”
As to conspiracy to defraud by the means mentioned in this section, see Regina v. Hudson.[[350]]
Games.
There can be no doubt that horse-racing is a “game” within the meaning of this section as it was within the Statute of Anne (sup. Cap. I., Part I). It would seem that the offence of winning is complete directly the event is declared in favour of the person who is guilty of the fraud, before the money is actually paid over.[[351]]
Privilege of Parliament.
By 18 Geo. II., c. 34, s. 7, no privilege of Parliament can be pleaded to a charge of keeping a gaming house.