It is remarkable that this question has never been practically dealt with in a Court of Law; nobody has ever yet tested the legality of Tattersall’s or similar clubs. There are, however, several dicta which give support to the view here suggested. Thus in Bows v. Fenwick, L.R., 9 C.P., at p. 344, Coleridge, C. J., observes: “It was an ascertained spot where the appellant carried on the business of betting with all persons who might resort there for that purpose.” Brett, J., at p. 346, says: “It was a fixed place selected and fixed upon by the appellant for persons who desired to deal with him.” In Galloway v. Maries, 8 Q.B.D., at p. 281, Grove, J., says: “There must be a fixed ascertained place occupied or used so far permanently that people may know that there is a person who stands in a particular spot indicated by a definite mark with whom they may bet;” and again, at p. 282: “The object of this Act was to prevent persons having fixed localities to which other persons may resort for the purpose of betting.” In Hornsby v. Raggett, 1891 2 Q.B.D., at p. 24, Smith, J., says: “The Act was intended to suppress the operations of those persons who keep what may be described as “banks” for the purpose of inducing other people to make bets with them.”[[390]] It seems a fact that in the clubs, the frequenters are all on the same footing. In the illegal houses they are divided into two classifications: (1) the persons who form the market for betting; (2) those who go there to bet with them.
A point may arise which has not yet been decided, whether the Act in speaking of betting relates only to betting on horse races, &c., or whether it also includes betting of every kind, such as betting on the price of stocks as has been pointed out in the chapter on the Stock Exchange.
Bucket shops.
Proceedings of this kind for what are called difference bargains are not infrequent in the “bucket shops”; does then the Act apply to these “bucket shops”[[391]] where difference bargains are the course of business?
The draftsmanship of the Act is curious, it speaks of two illegal purposes, thereby following the preamble: (1) betting with persons resorting thereto seemingly without limiting the betting to horse races; (2) receiving money on deposit on the event of horse races, &c., so that as far as ready money betting goes, the “bucket shops” are clearly not within the Act. It is submitted that in speaking of betting the Act cannot be held to limit it to betting on horse races, and that such limitation is confined to the case dealt with in the second clause of the section, viz., the ready money bet.
Betting by correspondence.
A further point arises on the wording of this very difficult statute within the first clause of the section, that is betting generally as distinguished from ready money betting. The words of the Act require that there should be: (a) Persons who resort thereto; (b) definite betting with them by the persons specified. Suppose, then, a bookmaker does business with his clients by correspondence, does he come within the Act? Can his correspondents be said to resort thereto? And the same question arises where betting is done by telephone. It is submitted that these persons cannot be said to resort thereto. To hold that they do, would be an artificial and strained construction of the Act. This clause of the section differs from the second relating to ready money betting, in which “persons resorting thereto” are not mentioned. It might well be that the framers of the Act desired, to put down, not betting generally, but establishments which form the nucleus of a crowd of disorderly persons, which in the language of Bacon’s Abridgment “cannot be but very inconvenient to the neighbourhood.” The prohibitions against ready money betting are more general as being productive of a greater amount of criminality amongst clerks and servants.
The true view seems to be that the bet must be made with the person as and when he physically resorts thereto. If a man sent his agent to the place no doubt the agent would resort thereto, but it would seem that this would not bring the bookmaker within the Act, unless the agent were authorized to conclude the bet. In the case of betting by correspondence, not only does the man send no agent there, but the bet is certainly not made on the premises.
It must be admitted that this view makes the prohibitions of the Betting House Act far less stringent than is usually supposed, and this is the more especially so since the decision in Davis v. Stephenson (this is dealt with post in the observations as to ready money betting) which seems to make it clear that by opening a banking account where persons can deposit money in respect of bets which they contemplate making, a bookmaker would not infringe the second clause of the section. Post p. 190.
Perhaps the greater part of the betting in this country is carried on through commission agents who belong to Tattersall’s or some other betting club, |Commission agents not within the Act.| and do commissions thereat for their clients. This transaction clearly does not come within the Act (that is, unless, as we shall show afterwards, he takes money in advance) as he does not bet himself. Of course, if he were really the principal, and did all the bets himself, he would be liable.