We have now to consider what really is comprehended in the term “game of chance” as used in this Statute. The writers are not aware that the exact term has been used in any other statute, though the converse expression, “game of skill,” is to be found in the Act of 1845. It is, however, to be found in various cases such as Turpin v. Jenks[[431]] and Dyson v. Mason[[432]] (see Table of Cases). In Tollett v. Thomas (ubi sup.) that a pari-mutuel was an instrument of wagering on a game of chance, although the owner was not betting himself with the depositors on the ground, that the amount which each depositor could win was a matter of uncertainty, until it was finally ascertained how many in the total had backed such depositor’s horse; the result being entirely independent of his skill.
It is submitted that the true test of whether or not a game is a game of chance, including in the term a game partially of skill and partially of chance is, whether according to the rules or scheme of the game any material part of or step in the game is determined by chance. But the term “chance” must be used in a more definite and limited sense than mere uncertainty, or even the possibility of uneven luck. The idea of chance seems to be the same as that of lot, e.g., the dealing of cards, the throwing of dice, or the spinning of a teetotum. Uncertainty is the essence of every game even if of skill; and frequently inequality of luck is an important factor. Thus in billiards or pool every stroke is an effort of skill both as to the stroke itself and the placing of the balls for next stroke; and probably (with ordinary players) few games of skill are more influenced by luck; yet in Dyson v. Mason, billiards was assumed on all sides to be a game of skill. Again, the design and scheme of a horse-race is a contest involving a trial of the speed and staying power of the horses, and the skill and nerve of the jockeys; though doubtless attended by uncertainties which need no enlargement. Still, what was assumed in Dyson v. Mason supports the view that mere uncertainty is not tantamount to chance; and if so, the question which was reserved in Tollett v. Thomas, viz.: whether or not horse-racing was a game of chance must be answered in the negative.
In Metropolis.
30 & 31 Vict., c. 134, section 24, provides that three or more persons assembled in the streets in the Metropolis for betting purposes may be fined £5 as for an obstruction.
APPENDIX A.
Higginson v. Simpson, ante p. 36.—The author begs, with great respect, to suggest that this decision is erroneous, and that the case is really within the principal of Beeston v. Beeston, which, it will be remembered, decides that a partner or agent is liable to account to his co-partner or principal for winnings received on a betting transaction. The real nature of the agreement in the present case seems to have been as follows:—The defendant, accepting the plaintiff’s “tip,” backed the horse “Regal” at 25 to 1, laying, say £4 on him, so that if the horse won, his winnings would be £100, of which he was to account for £50 to plaintiff, while if the horse lost, plaintiff was to pay him £2, i.e., share the loss in the same proportion as the profit. The author submits that this arrangement amounted to a partnership in a betting transaction and nothing else—it was a contract to share profit and loss. Suppose plaintiff had prepaid the £2 to defendant with instructions to back the horse on their joint account, plaintiff to receive £50 as his share of the winnings, would not that have been almost on all-fours with Beeston v. Beeston? Does, then, the fact of there having been no prepayment make any difference? or the fact that here the plaintiff was to win or lose a fixed sum, instead of a certain proportion of the profits or losses? The real distinction would seem to be between an independent wager between A and B and an agreement between A and B with respect to profits and losses to be won or incurred by a wager with a third party. The transaction in this case seems to come under the latter category; it was not like a “hedging” operation on the part of the defendant; it was not as if defendant had first made a wager with a third party backing the horse, and then made a separate wager with plaintiff betting against the horse, taking advantage, perhaps, of a change in the odds to cover his risks. The agreement clearly had reference to a betting transaction to be effected with a third party, and the plaintiff’s right to the £50 was clearly conditional on the bet being made, on the horse winning, and, it would even appear, on the defendant’s being paid what he won; plaintiff was to receive £50 out of the winnings. It was not an unconditional, personal agreement to pay on a future event.
No doubt in form it was very like a wager between plaintiff and defendant, plaintiff backing the horse for £2 at 25 to 1; but the cases cited in the text seem fully to establish the principle, which was indeed accepted by the Court in the present case, that it is the substance and not the form that is material.
N.B.—There is a misprint in the “Law Report,” 2 C. P. D. 76, which would give a totally different character to the transaction. The report reads, the “Defendant was to pay £2 to the plaintiff.” It is clear from the arguments and the judgment that it was the plaintiff who was to pay £2 to the defendant.