(2.) Whether the box was “a place.”

Grove, J., said the questions were not well framed. “The box, which is a moveable thing, cannot of itself be a place, and perhaps the enclosure might not of itself be a place within the Act. The real question is whether the facts in the case constituted a ‘place.’” After referring to the previous cases, continued: “I am inclined to think that the more important consideration is the fixity of the place, not, indeed, the absolute fixity as in the case of fixtures, but in the sense of the place being and remaining the same for a considerable time, long enough for the betting public to know where persons willing and offering to bet might be found. I do not say whether a person standing on a carriage step or in a circle where the turf was cut away would be within the Act, but I am far from saying he would not be so.”

Upon this case it may be observed—

(1.) That from the remarks of Grove, J., about the frame of the questions, the real issue is not whether a particular structure or spot is “a place” or not, but whether, coupled with all the facts, the use to which it has been put, &c., a place has not been constituted by the act of the person.

(2.) That the remark of Grove, J., as to the box not being a place as being moveable, is in contradiction to the views of Kelly, C.B., and Martin, B., in Shaw v. Morley (vide supra). In the latter case it was the certainty rather than the fixity of the place that was taken as the test.

(3.) It was the fact that the defendant occupied one spot the whole of the time which formed the grounds of the judgment. “There must be,” said Grove, J., at p. 211, “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 certain definite mark, with whom they may bet.” This case seems to show that in order for a person to be within the Act, it is not sufficient that he should be in an enclosure, say the grand stand, at a racecourse and betting with people there, unless he occupies one spot within the enclosure for the whole time. Snow v. Hill[[363]] the defendant was convicted by the magistrates of an offence under the Act, it having been proved that he was in a reserved part of the ground, and was walking about making bets with people therein. The Court held that the defendant was not within the Act. It is, however, difficult to say from the judgment in this case whether the decision was rested on the fact that he was walking about and did not occupy one spot, or whether sufficient user for the purpose of betting was not proved. The judgments in Whitehurst v. Fincher[[364]] and of Hawkins, J., in Reg. v. Preedie (see next page note) seem to suggest that the latter was the real ground of the case. It is submitted that, after the case of Eastwood v. Miller and Hague v. Sheffield, an enclosure of the kind is such a place within the Act as is capable of being used for the purpose of betting. In the two latter cases it is true the owners were convicted of permitting the places to be so used. They were not prosecutions of the men using them. It would seem, however, to be clear that the owner cannot be liable for permitting such user unless the user itself is illegal under the Act. The conclusion would therefore seem to be that the owner cannot be liable unless the person using the same is liable also, and in neither of these cases does it appear that fixed spots were occupied and it was the whole enclosure and not definite spots therein that were alleged to have been so used. The observations of Hawkins, J., Reg. v. Cook[[365]] seem to support this view. His lordship evidently considers the ordinary operations of betting men in such enclosures illegal, irrespective of their doing business on a stool or under an umbrella. “Here was ample evidence that the betting men were using these grounds for the purpose of betting with all persons resorting thereto, but no proceedings seem to have been taken against them.” But no doubt the place alleged to be used must be so far limited in area as not to be too large for the operations of the person using it. A man could not be said to use Hyde Park for betting purposes, though he might use a particular part of it.

In Reg. v. Preedie,[[366]] Hawkins, J., in a judgment delivered at the Central Criminal Court, which contains an elaborate survey of the statute and the cases thereon, thus expresses his views on this topic (after referring to Galloway v. Maries and Snow v. Hill): “I can hardly think that the learned judges intended to lay down as law that nothing would satisfy the term ‘place’ unless it was some particular spot in which a person stood, or which was appropriated by him exclusively for his own use.... The place must not be unlimited. On the contrary, I am of opinion that though it may be bounded by no definite line, it must nevertheless be limited in extent to the area occupied by the persons congregating together and resorting to it: so that any person carrying on his business there as a betting man might fairly and reasonably be said to be doing so in the immediate presence of those congregated together.” The Scotch case of Heuretty v. Hart[[367]] is quite in accord with this view; it was there held that a racecourse of about twenty acres in extent, though enclosed, could not of itself be a place.

In the above state of the authorities, bookmakers in the ring, say in the grand stand at a race meeting, must not assume that they are outside the Act however much their operations may be winked at by the authorities.

A room.

But where a room has been used no difficulty has been felt. Reg. v. Preedie (ubi sup.) was the case of the user of a tap room of a public house. It was held that the fact that the house or place was not primarily addicted to betting purposes was immaterial; that actual user of the place was sufficient.