LAW LENDING
 
 THE 
 
 LAW LENDING LIBRARY, 
 
 ,KOK TOWN AND COUNTRY,) 
 
 120, CHANCERY LANE, LONDON. 
 
 Contains 8 
 
 Yearly Subscripi 
 at any 
 1 
 
 1 1 
 2 
 
 2 1 
 3 
 
 4 
 
 New "Wbr 
 but STEVENS 
 any publical 
 
 Cheques or P 
 STEVENS & 
 
 OTE. Books 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 iplete 
 
 to Books 
 
 iblication, 
 yr exclude 
 
 yable to 
 on, W.O. 
 
 rise defaced,

 
 THE 
 
 LAW OF GAMBLING 
 
 CIVIL AND CRIMINAL. 
 
 BY 
 
 WARD COLDRIDGE, M.A., 
 
 OF LINCOLN'S INN AND THE WESTERN CIRCUIT, 
 AND 
 
 CYRIL V. HAWKSFORD, B.A., 
 
 OF THE MIDDLE TEMPLE, 
 
 BARRISTERS-AT-LAW. 
 
 LONDON : 
 
 REEVES AND TURNER, 
 
 100, CHANCEEY LANE, AND CAEEY STREET, 
 TEato ISoofescllcrs atrtr publishers. 
 
 1895.
 
 c 
 
 LONDON : 
 FEINTED BY C. F. BOWOBTH, QBEA.T NEW STEEET, FETTER LANE, E.G.
 
 PKEFACE. 
 
 GAMBLING is not a term of precise and denned 
 meaning, but it sufficiently indicates the subject- 
 matter with which this book deals (namely), spe- 
 culating, wagering, and gaming. This book is 
 divided into two parts, civil and criminal. The 
 civil portion commences with a detailed discussion 
 of wagering contracts as such ; the attitude of the 
 common law towards wagers, games, and gaming 
 is then shown. From that point the civil portion 
 traces the development of illegal transactions and 
 obligations connected therewith, and subsequently 
 the Act 8 & 9 Viet. c. 109, introduces the void 
 transactions and the obligations arising there- 
 from. The effect of the Gaming Amendment Act, 
 1892, is stated, and the authorities are collated. 
 The law relating to gaming securities is traced 
 and illustrated by reference to all classes of 
 securities. Speculation on the Stock Exchange 
 forms the subject-matter of a separate chapter. 
 The criminal portion commences with a succinct 
 
 a2 
 
 778836
 
 IV PREFACE. 
 
 account of criminal procedure, and it is hoped 
 that that chapter will form a useful introduction 
 to the subsequent matters. The Betting House 
 Act and its difficulties, together with the present 
 authorities thereon, have been examined in Chap- 
 ter XIII., and on the questions of the legality of 
 betting on race-courses, the probable influence of 
 the decision in the Albert Club Case (Doivnes v. 
 Johnson) is, with submission, indicated. 
 
 The book has been written primarily for the use 
 of members of the legal profession ; at the same 
 time it is hoped that it may be of service to 
 others interested in the subject. The Authors, in 
 endeavouring to state the present law, have been 
 compelled to trace its development and exhibit 
 the different phases through which it has passed. 
 
 W. C. 
 C. V. H. 
 
 NEW SQUARE, LINCOLN'S INN. 
 November, 1895.
 
 CONTENTS. 
 
 Part I. CIVIL. 
 
 CHAPTEE I. 
 
 PAGK 
 
 WAGERING CONTRACTS .... i 26 
 
 CHAPTEE II. 
 
 WAGERS, GAMES, AND GAMING AT COMMON LAW - 27 41 
 
 CHAPTEE in. 
 
 GAMES INVOLVING SKILL AND CHANCE - 42 61 
 
 Section A. The Statute of Hen. VIII. 4244 
 
 Section B. Fraudulent and Excessive Gaming - 4.5 56 
 
 Section C. Horse Racing - 56 59 
 Section D. Cock Fighting, and other Sports Cruel to 
 
 Animals ..... 6061 
 
 CHAPTEE IV. 
 
 GAMES or CIIANCE STATUTORY ENACTMENTS - 62 79
 
 VI CONTENTS. 
 
 CHAPTEE Y. 
 
 PAGE 
 
 PART I. Gaming Securities under the Statute of 
 
 16 Car. II. c. 7 ; 9 Anne, c. 14 - 8090 
 
 PART II. Gaming Securities under the Statute of 
 
 Will. IV. - - - 90106 
 
 CHAPTEE VI. 
 
 CIVIL OBLIGATIONS ARISING OUT OF ILLEGAL TRANS- 
 ACTIONS ..... 107 135 
 
 CHAPTEE VII. 
 
 AN ACT TO AMEND THE LAW CONCERNING GAMES AND 
 
 WAGERS (8 & 9 Viet. c. 109) - - - 136164 
 
 CHAPTEE VIII. 
 
 OBLIGATIONS ARISING OUT or VOID TRANSACTIONS - 165 197 
 
 CHAPTEE IX. 
 
 THE GAMING ACT, 1892 - - - - 198206 
 
 CHAPTEE X. 
 
 SPECULATION ON THE STOCK EXCHANGE - - 207 221
 
 CONTENTS. 
 
 Vll 
 
 Part II. CRIMINAL. 
 
 CHAPTER XI. 
 
 CBTMINAL PBOCEDURE 
 
 PAGE 
 
 222238 
 
 CHAPTER XH. 
 OFFENCES RELATING TO GAMING HOUSES - 
 
 239259 
 
 CHAPTER XIH. 
 
 OFFENCES RELATING TO BETTING HOUSES - 
 
 260304 
 
 CHAPTER XIV. 
 
 Section A. Gaming on Licensed Premises 
 Section B. Betting in Public Places - 
 
 305317 
 317318 
 
 CHAPTER XV. 
 
 LOTTERIES AND GAMES OF CHANCE 
 
 319331 
 
 [APPENDIX.
 
 Till CONTENTS. 
 
 APPENDIX. 
 
 PAGE 
 
 Form I. EXAMPLE OF INFORMATION - - 333 
 
 -,, II. SEABCH WARRANT - - - 334 
 
 III. EXAMPLE OF SUMMONS TO DEFENDANT - - 335 
 
 ,, IV. EXAMPLE OF SUMMONS TO A WITNESS - - 335 
 
 ,, V. EXAMPLE QF WARRANT FOR APPREHENSION OF 
 
 DEFENDANT - - - 336 
 
 VI. EXAMPLE OF WARRANT FOR APPREHENSION OF 
 
 WITNESS - - 338 
 
 ,, VII. EXAMPLE OF WARRANT FOR APPREHENSION OF 
 
 WITNESS IN .FIRST INSTANCE - - 338 
 
 ,,, VIII. EXAMPLE ^OF COMMITMENT ON REMAND - 339 
 
 IX. EXAMPLE OF CONVICTION FOR PENALTY - - 340 
 ,, X. EXAMPLE OF NOTICE OF APPEAL - - 341 
 
 XI. RECOGNIZANCE OF APPELLANT - - 342 
 
 ,, XII. EXAMPLE OF SPECIAL CASE ... 343 
 
 INDEX
 
 TABLE OF CASES. 
 
 PAGE 
 
 ALCINBROOK v. Hall (1766), 2 Wilson, 309 - 55, 179 
 
 Aldborough v. Trye (1840), 7 01. & F. 436- - - 99 
 
 Allen v. Hearn (1793), 1 T. E. 56 - 33 
 
 Allport v. Nutt (1845), 1 C. B. 974; 3 D. & L. 233; 14 L. J. 
 
 C. P. 272 ; 9 Jur. 900 - - - - 70 
 
 Amory v. Meryweather (1824), 2 B. & C. 573 - - . - 125 
 
 Anderson v. Hume (1882), 46 J. P. 825 - - - 270 
 
 Andrews v. Hearne (1793), 1 Lev. 33 - 27, 33 
 
 Anonymous (1676), 2 Mod. 279 (Case 160)- - - 89 
 
 Anonymous (1795), Salk. 100 - - 35 
 
 Applegarth v. Colley (1843), 10 M. & W. 723 ; 12 L. J. Ex. 34 ; 
 
 7 Jur. 18- - 10, 51, 154, 156 
 
 Armstrong v. Armstrong (1834), 3 M. & K. 45 - 131 
 
 Armstrong v. Toler (1826), 11 Wheat. 258 - - - 109 
 
 Atherfold v. Beard (1788), 2 T. E. 610 - 32, 143 
 
 Att.-Gen. v. Hollingsworth (1857), 2 H. & N. 416; 27 L. J. 
 
 Ex. 102 - - - - - - - 110 
 
 Att.-Gen. v. Stephens (1855), 6 De G. M. & G. Ill ; 19 J. P. 
 
 642--- ..._95 
 
 Aubert v. Maze (1801), 2 B. & P. 371 - 108, 110, 131 
 
 Aubert v. Walsh (1810), 3 Taunt. 277 - - 117 
 
 Bagot v. Arnott (1867), 2 Ir. Eep. C. L. 1 - - 114, 203 
 
 Bahia and San Francisco Eailway Co., In re (1868), L. E. 
 
 3 Q. B. 584 ; 37 L. J. U. B. 176 ; 18 L. T. 467 ; 16 W. E. 
 
 862 - - - - - - - 201 
 
 Baker v. Williams (note to Eawden v. Shadwell, 1 Amb. 269) - 84, 86 
 Barclay v. Pearson, (1893) 2 Oh. 154; 62 L. J. Ch. 636; 68 
 
 L. T. 709 ; 42 W. E. 74 ; 3 E. 388 - 69, 70, 71, 121, 129, 135 
 Barjeau v. Warmsley (1746), 2 Stra. 1248 - - - 54 
 
 Barlow, In re, Ex parte Thornber (1886), 3 Mor. Bk. E. 304; 
 
 56 L. T. 168 - - - - 216 
 
 Barry v. Croskey (1861), 2 J. & H. 1 - - 142 
 
 Bartlett v. Vinor (1693), Garth. 251 * - 108
 
 X TABLE OP CASES. 
 
 PAGE 
 
 Bate v. Cartwright (1819), 7 Price, 540 - - - - 129 
 
 Batson v. Newman (1876), 1 C. P. D. 573 ; 25 W. E. 85 - 155, 162 
 Batty v. Marriott (1848), 5 0. B. 818 ; 17 L. J. 0. P. 215 ; 12 
 Jur. 462 - - - - - - 156, 161, 194 
 
 Bayntun v. Cattle (1833), 1 M. & E. 265 - 124, 206 
 
 Beeston v. Beeston (1876), 1 Ex. Div. 13; 45 L. J. Ex. 230; 
 
 33 L. T. 700; 24 W. E. 96 - - 135, 195 
 Begbie v. Phosphate Sewage Co. (1876), 1 Q. B. D. 679; 35 
 
 L. T. 350; 25 W. E. 85; C. A., affirming L. E. 10 Q. B. 
 
 491 ; 44 L. J. Q. B. 233 ; 33 L. T. 470 ; 24 W. E. 115 - 116, 122, 
 
 215 
 
 Bell, Ex parte (1813), 1 M. & S. 751 - - 108, 122 
 
 Bell v. Bishop of Norwich (1567), Dyer, Mich. Term, 8 & 9 
 
 Eliz. fol. 254 b - - - - - - - 34 
 
 Benbow v. Jones (1845), 14 M. & W. 193 ; 14 L. J. Ex. 257 - 149 
 Benjamen v. De Mattos (1894), 10 T. L. E. 221 ; 63 L. J. 
 
 Q. B. 248 ; 70 L. T. 560 ; 42 W. E. 284 ; 38 S. J. 238 - 204 
 Bensley v. Bignold (1822), 5 B. & Aid. 335 - - 115 
 
 Bentinck v. Connop (1844), 5 Q. B. 693; D. & M. 538; 13 
 
 L. J. Q. B. 125 ; 8 Jur. 336 - - - - - 10 
 
 Bew v. Harston (1878), 3 Q. B. D. 454; 47 L. J. M. C. 121; 
 
 39 L. T. 233 ; 26 W. E. 915 ; 42 J. P. 808 - - 314 
 
 Beyer v. Adams (1857), 26 L. J. Ch. 841 ; 3 Jur. N. S. 709 ; 
 
 5 W. E. 795 - - - - 173, 186 
 
 Bickerton v. Walker (1885), 31 Ch. Div. 151 ; 55 L. J. Ch. 
 
 227 ; 55 L. T. 731 ; 34 W. E. 141 - - 89 
 
 Bingham v. Stanley (1841), 1 G. & D. 237; 2 Q. B. 117 - - 95 
 Bishop v. Staples (1687), Eeg. Lib. 1687, A. fol. 219 - 34, 35, 36 
 Bittleston v. Cooper (1845), 14 M. & W. 399 - - 188 
 
 Blake v. Beech (1876), 1 Ex. Div. 320; 45 L. J. M. C. Ill; 
 
 34 L. T. N. S. 764 ; 7 J. P. 678 - - - 228, 269 
 Bland v. Collett (1815), 4 Camp. 157 - - 190 
 Blaxton v. Pye (1766), 2 Wils. 309 - 51, 53 
 Bond v. Evans (1888), 21 Q. B. D. 249 ; 57 L. J. M. C. 105; 
 
 59 L. T. 411 ; 52 J. P. 612 ; 36 W. E. 767 ; 4 T. L. E. 614 ; 
 
 16 Cox, C. C. 461 - 306, 310, 311 
 
 Bondv. Plumb, (1894) 1 Q. B. 169; 70 L. T. 405; 42 W. E. 
 
 222 ; 38 S. J. 99 ; 58 J. P. 168 - - 262, 264 
 
 Bone v. Eckless (1860), 5 H. & N. 925 ; 29 L. J. Ex. 438 - 118 
 Bones v. Booth (1779), 2 Bl. 1225 - - - 53 
 
 Booth v. Hodgson (1795), 6 T. E. 405 - - 110, 130 
 
 Bosley v. Davies (1875), 1 Q. B. D. 84 ; 45 L. J. M. C. 27 ; 33 
 
 L. T. 528 ; 24 W. E. 140 ; 40 J. P. 550 - - - - 307 
 
 Boulton v. Coghlan (1835), 1 Bing. N. C. 640 ; 1 Hodges, 145 ; 
 
 1 Scott, 588 - - 83, 94, 96 
 
 Bousfield v. Wilson (1846), 16 M. & W. 185 ; 16 L. J. Ex. 44 - 127
 
 TABLE OF CASES. XI 
 
 PAGE 
 
 Bovey v. Castleman (1695), 1 Eaymond, 69 - - 27 
 
 Bovill v. Hammond (1827), 6 B. & C. 149 ; 9 D. & E. 186 - 194 
 Bowry v. Bennet (1808), 1 Camp. 348 - - 113 
 
 Bows v. Fenwick (1872), L. E. 9 0. P. 339; 43 L. J. M. 0. 
 
 107 ; 30 L. T. 524 ; 22 W. E. 804 - - 274, 276 
 
 Bowyer v. Bampton (1741), Strang. 1155 a - 81 
 
 Bradwell v. Catchpole (1818), 3 Swan. 78 (note to Walker v. 
 
 Symonds) - - 87 
 
 Brandon v. Hibbert (1814), 4 Camp. 37 - - - 190 
 
 Bridger v. Savage (1885), 15 Q. B. D. 363 ; 54 L. J. Q. B. 464 ; 
 
 53 L. T. 129 ; 33 W. E. 891 ; 49 J. P. 725 - 135, 185, 186, 203 
 Brogden v. Marriott (1836), 3 Bing. N. 0. 88; 2 Scott, 712 ; 2 
 
 Hodges, 136 - 6, 20 
 
 Brown v. Berkeley (1775), 1 Cowp. 281 - - - 51 
 
 Brown v. Leeson (1792), 2 H. Bl. 43 - 34, 52 
 
 Brown v. Overbury (1856), 11 Ex. 715 ; 25 L. J. Ex. 169 - 148, 
 
 159 
 
 Brown v. Turner (1798), 7 T. E. 630; 2 Esp. 631 - 108, 110 
 
 Browning v. Morris (1778), 2 Cowp. 790 - 121 
 
 Bryan v. Lewis (1826), E. & M. 386 - - 6 
 
 Bubb v. Yelverton (1870), L. E. 9 Eq. 471 ; 39 L. J. Ch. 428 ; 
 
 22 L. T. 258 ; 18 W. E. 512 - - 104, 183 
 
 Buckland, Ee (1852), 1 Font. Gas. in Bk. 250 - - - 216 
 
 Bulling v. Frost (1794), 1 Esp. Cas. 235 - 53 
 
 Burrowes v. Lock (1805), 10 Yes. 470 - - 201 
 
 Busk v. Walsh (1812), 4 Taunt. 290 - - 117 
 
 Caminada v. Hulton (1891), 60 L. J. M. C. 116; 64 L. T. N. S. 
 
 572 ; 39 W. E. 540 ; 55 J. P. 727 - - 74 
 
 Campbell v. Innes (1821), 4 B. & Aid. 426 - - 134 
 
 Cannan v. Bryce (1819), 3 B. & Aid. 179 108, 112, 203 
 
 Cardaval v. Collins (1836), 4 Ad. & El. 858 - - 119 
 
 Carlill v. The Carbolic Smoke Ball Co., (1892) 2 Q. B. 484 ; 61 
 
 L. J. a B. 696; 56 J. P. 665; affirmed (1893) 1 Q. B. 256; 
 
 62 L. J. Q. B. 257 ; 4 E. 176 ; 67 L. T. 837 ; 41 W. E. 210 ; 
 
 57 J. P. 325 - - - - - 2, 10 
 
 Carr v. Martinson (1859), 1 El. & El. 456 ; 28 L. J. Q. B. 126 ; 
 
 5 Jur. N. S. 788 ; 7 W. E. 293 - - - 151 
 
 Catlin v. Bell (1815), 4 Camp. 183 - - 124 
 
 Cave v. Mills (1862), 31 L. J. Ex. 265; 8 Jur. N. S. 363; 6 
 
 L. T. N. S. 650; 10 W. E. 471 - - - 188 
 
 Chamberlain, Ex parte (1858), 8 El. & B. 644 - - 317 
 
 Chappie, In re (1895), 9 and 10 Aug. 1895- - - 19 
 
 Clarke v. Hague (1860), 2 El. & El. 281 ; 29 L. J. M. C. 105; 
 
 8 Cox, C. C. 324 ; 8 W. E. 363 ; 6 Jur. N. S. 273 - - 253
 
 Xll TABLE OF CASES. 
 
 PAGE 
 
 Clayton v. DiUey (1811), 4 Taunt. 165 - - 178, 194 
 
 Clayton v. Jennings (1770), 2 Bl. 706 51, 53, 156 
 
 Cohen v. Kittell (1889), 22 Q. B. D. 680; 58 L. J. Q. B. 241; 
 
 60 L. T. N. S. 932 ; 37 W. E. 400 ; 53 J. P. 469 - - 176 
 
 Coles v. Bristowe (1869), L. E. 4 Ch. 3; 38 L. J. Ch. 81 ; 19 
 
 L. T. 403 ; 17 W. E. 105 ' - - - 219 
 
 Collins v. Blantern (1767), 2 Wils. 341, 347 - 107, 112, 142 
 
 Cooper, In re, Cooper v. Vesey (1882), 20 Ch. Div. 611 ; 51 L. J. 
 
 Ch. 862 ; 47 L. T. 89 ; 30 W. E. 648 - - 87 
 
 Cooper v. Neil (1878), W. N. 128 - - 19, 142 
 
 Cooper v. Osborne (1876), 35 L. T. 347 ; 40 J. P. 759 - - 314 
 
 Copeland, Ex parte (1852), 2 De GL M. & G. 914 ; 22 L. J. Bk. 
 
 17; 17 Jur. 121 - - - - - - 216 
 
 Cotterill v. Lempriere (1890), 24 Q. B. D. 634; 59 L. J. M. 0. 
 
 133; 62 L. T. 695 - - - - - -224 
 
 Cotton v, Shurland (1793), 5 T. E. 405 - - 128 
 
 Cousins v. Smith (1807), 13 Ves. 542 - - 131 
 
 Cowan v. Milbourn (1867), L. E, 2 Ex. 230 ; 36 L. J. Ex. 124 ; 
 
 16 L. T. 290 ; 15 W. E. 750 - - - 113 
 
 Cox v. Andrews (1884), 12 Q. B. D. 126 ; 53 L. J. M. C. 34 ; 32 
 
 W. E. 289 ; 48 J. P. 247 - - 300 
 
 Crabtree v. Hole (1879), 43 J. P. 799 - - 309 
 
 Crockford v. Lord Maidstone (1847), 8 L. T. 217 - 247 
 
 Crofton v. Colgan (1859), 10 Ir. C. L. E. 133 - 21, 155, 159, 170 
 Cruse v. Paine (1869), L. E. 6 Eq. 641 ; 37 L. J. Ch. 711 ; 19 
 
 L. T. 127 ; 17 W. E. 44 ; affirmed L. E. 4 Ch. 441 ; 38 L. J. 
 
 Ch. 225 ; 17 W. E. 1033 - - 219 
 
 Cundy v. Le Cocq (1884), 13 Q. B. D. 207 ; 53 L. J. M. C. 125 ; 
 
 51 L. T. 265 ; 32 W. E. 769; 48 J. P. 599 - - 311 
 
 Da Costa v. Jones (1775), 2 Cowp. 729 - - 28, 29, 30, 142 
 
 Daintree v. Hutchinson (1842), 10 M. & W. 85 ; 6 Jur. 39 - 154 
 Dalby v. The India and London Life Assurance Co. (1854), 15 
 
 C. B. 365; 3 C. L. E. 361; 24 L. J. C. P. 2 - -2,24 
 
 Danford v. Taylor (1869), 20 L. T. 483 ; 33 J. P. 612 - - 314 
 
 Danvers v. Thistlethwayte (1669), 1 Lev. 244 - - 52 
 
 Davis v. Stephenson (1890), 24 Q. B. D. 529; 59 L. J. Q, B. 
 
 305 ; 62 L. T. 436 ; 38 W. E. 492 - - - - 296 
 
 Davison v. Franklin (1830), 1 B. & Ad. 142 - - 89 
 
 De Begnis v. Armistead (1833), 10 Bing. 107 - - 131 
 
 Dickson v. Pawlet (1795), 1 Salk. 345 - - 53 
 
 Diggle v. Higgs (1877), 2 Ex. Div. 422; 46 L. J. Ex. 721 ; 37 
 
 L. T. 27 ; 25 W. E. 777 ; C. A. reversing 25 W. E. 607 - 10, 
 
 141, 145, 161, 192, 194 
 Dines v. Wolfe (1869), L. E. 2 C. P. 280; 5 Moore, P. C. C. 
 
 N. S. 382; 20 L. T. 251 - 146, 160
 
 TABLE OF CASES. Xlil 
 
 PAGE 
 
 Ditchburn v. Goldsmith (1815), 4 Camp. 152 - - 31 
 
 Dixon v. Wells (1890), 25 Q. B. D. 249; 59 L. J. M. C. 116; 
 
 62 L. T. 812; 38 W. E. 606 - - - - 226 
 
 Doggett v. Catterns (1865), 19 0. B. N. S. 765 ; 34 L. J. C. P. 
 
 159; 11 Jur. N. S. 243; 12 L. T. 355; 13 W. E. 390 - 271, 287 
 Downes v. Johnson, (1895) 2 Q. B. 203; 64 L. J. M. C. 238 - 233, 
 
 292 
 
 Dowson v. Scriven (1789), 1 H. Bl. 219 - 154 
 
 Duvergier v. Fellowes (1828), 5 Bing. 248; 10 B. & C. 826; 1 
 
 C. & F. 39 . - - - 130 
 
 Dyson v. Mason (1889), 22 Q. B. D. 351; 58 L. J. M. C. 55; 
 
 60 L. T. 265 ; 53 J. P. 262 - - - - 318 
 
 Eastwood v. Miller (1874), L. E. 9 Q. B. 440 ; 43 L. J. M. C. 
 
 139 ; 30 L. T. 716 ; 22 W. E. 799 ; 38 J. P. 647 - - 277, 284 
 
 Edgar v. Fowler (1803), 3 East, 222 - 
 Edgebury v. Eosindale (1670), 2 Lev. 94; Vent. 253 
 Edwards v. Dick (1821), 4 B. & Aid. 212 
 Eggleton v. Lewin (1722), 3 Lev. 118 
 Ellis v. Hopper (1858), 3 H. & N. 766 ; 28 L. J. Ex. 1 ; 4 Jur. 
 
 N. S. 1025 ; 7 W. E. 15 - - - 149 
 
 Ellis v. "Warner (1605), Cro. Jac. 32, pi. 6 ; Yelverton, 47 - - 89 
 Eltham v. Kingsman (1818), 1 B. & Aid. 683 - - 32, 190 
 
 Emery v. Eichards (1845), 14 M. & W. 728; 15 L. J. Ex. 49 - 190 
 Evans v. Jones (1839), 5 M. & W. 77; 2 H. & H. 67 ; 3 Jur. 
 
 318 - - 30, 33 
 
 Evans v. Pratt (1842), 4 Scott, N. E. 378; 1 D. N. S. 505; 3 
 
 M. & Or. 759; 6 Jur. 152 - 58, 147, 154, 157 
 
 Evans v. Summers (1871), 35 J. P. 761 - 147 
 
 Everet v. Williams, Lindley on Partnership, 6th edit. p. 101 - 135 
 Eyre v. WaUer (1860), 5 H. & N. 460; 29 L. J. Ex. 246; 8 
 
 W.E.450 97 
 
 Faikney v. Eeynous (1767), 4 Burr. 2070 108, 109, 131 
 
 Fairtlough v. Whitmore (1895), 64 L. J. Ch. 386 ; (1895) W. N. 
 
 52 257,318 
 
 Farmer v. EusseU (1798), 1 B. & P. 296 - 126, 134 
 
 Featherstone v. Hutchinson (1590), Cro. Eliz. 199 - - - 115 
 
 Firebrass v. Brett (1688), 1 Vern. 489 ; 2 Vern. 70 - - 36 
 
 Fisher v. Bridges (1853), 2 E. & B. 118; 3 E. & B. 642; 2 
 
 C. L. E. 928 ; 2 L. J. Q. B. 165 ; 1 Jur. N. S. 157 - - 110 
 Fisher v. Waltham (1843), 4 Q. B. 889; D. & M. 142; 12 
 
 L. J. Q. B. 330 ; 7 Jur. 625 - - 34
 
 XIV TABLE OP CASES. 
 
 PAGE 
 
 Fitch v. Jones (1855), 5 E. & B. 238 ; 24 L. J. Q. B. 293 ; 1 Jur. 
 
 N. S. 854 - 143, 165, 169 
 
 Fivaz v. Nicholls (1846), 2 C. B. 501 ; 15 L. J. C. P. 125 - 122 
 Fleetwood v. Jansen (1742), 2 Atk. 467 - - - 86 
 Plight v. Eeed (1863), 1 H. & C. 703 ; 32 L. J. Ex. 265 ; 9 Jur. 
 
 N. S. 1016 ; 12 W. E. 53 110 
 
 Foot v. Baker (1843), 5 M. & G. 335 - - 203 
 
 Forget v. Ostigny, (1895) App. Gas. 318 ; 64 L. J. 62 ; 72 L. T. 
 399 ; 43 W. E. 509 - - - - - - 8 
 
 Fryer v. Morland (1876), 3 Ch. Div. 675 ; 45 L. J. Oh. 817 ; 35 
 L. T. 458; 25 W. E. 21 - - - - - - 25 
 
 Gallaway v. Maries (1881), 8 Q. B. D. 275; 51 L. J. M. 0. 53; 
 
 45 L. T. 763 ; 30 W. E. 151 ; 46 J. P. 326 - - 280, 281 
 
 Garrett v. Messenger (1867), L. E. 2 0. P. 583 ; 16 L. T. N. S. 
 
 414 ; 36 L. J. 0. P. 337 ; 15 W. E. 864 ; 10 Cox, C. C. 498 - 224 
 Gatty v. Field (1846), 9 Q. B. 431 ; 15 L. J. Q. B. 408 ; 10 Jur. 
 
 980 70 
 
 Geere v. Mare (1863), 2 H. & 0. 339 ; 33 L. J. Ex. 50 ; 8 L. T. 
 
 N. S. 463 110 
 
 George v. Milbanke (1803), 9 Yes. 190 - 99 
 
 Gilbert v. Sykes (1812), 16 East, 150 - - 33 
 
 Gilpin v. Clutterbuck (1849), 13 L. T. 71, 159 - - 105 
 
 Gingell v. Purkins (1850), 4 Ex. 720 ; 19 L. J. Ex. 129 - - 188 
 Girardy v. Eichardson (1793), 1 Esp. 13 - 113 
 
 Godefroi, Ex parte, In re Hart (1870), W. N. 1870, p. 95 - - 179 
 Godsall v. Boldero (1807), 9 East, 72 - - 24 
 
 Good v. Elliott (1790), 3 T. E. 693 - - 28 
 
 Goodall v. Lowndes (1844), 6 Q. B. 464 ; 9 Jur. 177 - - 119 
 
 Goodbum v. Marley (1742), 2 Strange, 1159 - - 51 
 
 Goodman v. Harvey (1836), 4 Ad. & El. 870 - - 95 
 
 Graham v. Thompson (1867), Ir. Eep. 2 C. L. 64 - - - 192 
 
 Grant, Ex parte, In re Plumbly (1880), 13 Ch. Div. 667; 42 
 
 L. T. 387; 28 W. E. 775 - - - - 210, 217 
 
 Graves v. Houlditch (1816), 2 Price, 147 - - - 84 
 
 Gray v. Lewis (1873), L. E. 8 Ch. 1035 ; 43 L. J. Ch. 281 ; 29 
 
 L. T. 12 ; 21 W. E. 923 - - - - - 215 
 
 Grizewood v. Blane (1851), 11 C. B. 526 ; 12 L. J. C. P. 46 - 13, 19, 
 
 142, 211 
 
 Haigh v. Town Council of Sheffield (1875), L. E. 10 Q. B. 102 ; 
 
 44 L. J. M. C. 17 ; 31 L. T. 536 ; 23 W. E. 547 - 262, 279, 298 
 Hamilton v. Walker, (1892) 2 Q. B. 25 ; 61 L. J. M. C. 134; 
 
 67 L. T. 200 ; 40 W. E. 476 ; 56 J. P. 583 - - - 225
 
 TABLE OP CASES. XV 
 
 PAGE 
 
 Hampden v. Walsh (1876), 1 Q. B. D. 189 ; 45 L. J. Q. B. 238 ; 
 
 33 L. T. 852 ; 24 W. E. 607 - - 190, 192 
 
 Hare v. Osborne (1876), 34 L. T. 294 - - 314 
 
 Hartley v. Eice (1808), 10 East, 22 - - 32 
 
 Harvey v. CoUett (1846), 15 Sim. 332 - - - - 131 
 
 Hastelow v. Jackson (1828), 8 B. & C. 221 - 129, 190 
 
 Hawker v. Hallewell (1856), 3 Sm. & G. 194 ; 2 Jur. N. S. 537 ; 
 
 affirmed on appeal, 25 L. J. Ch. 558 ; 2 Jur. N. S. 794 - 89, 101 
 Hay v. Ayling (1851), 16 Q. B. 423 - - 96 
 
 Henkin v. Guerss (1810), 12 East, 247 - - 33 
 
 Herman v. Jeuchner (1885), 15 Q. B. D. 561 ; 54 L. J. Q. B. 
 340 ; 53 L. T. 94 ; 33 W. E. 606 ; 49 J. P. 502 ; 0. A. re- 
 versing 1 C. & E. 364 - - - - - 118 
 Hibblewhite v. M'Morine (1839), 5 M. & W. 462 ; 3 Jur. 509 - 7 
 Higginsonv. Simpson (1877), 2 C. P. D. 76; 46 L. J. 0. P. 
 
 192; 36 L. T. 17; 25 W. E. 303 - - - 196 
 
 Hill v. Fox (1859), 4 H. & N. 359 - - 165 
 
 Hill v. Pheasant (1675), 2 Mod. 541 ; 1 Freem. 200 - - 52 
 
 Hilton v. Eckersley (1855), 6 E. & B. 47 ; 25 L. J. Q. B. 199 ; 
 
 2 Jur. N. S. 587 ... no 
 
 Holman v. Johnson (1775), 1 Cowp. 341 - - - 131 
 
 Holyday v. Oxenbridge (1632), Or. Chas. 234 - 35, 39 
 
 Howden v. Haigh (1840), 11 Ad. & El. 1033 ; 3 P. & D. 661 - 115 
 Hudson v. Malin (1676), 1 Freem. 432 ; 3 Keb. 671 - - 52 
 
 Hudson v. Terrill (1833), 1 Or. & M. 797 - - - 129 
 
 Hunt v. Williams (1888), 52 J. P. 821 - - 73 
 
 Hussey v. Crickett (1811), 3 Camp. 168 - - 28, 29 
 
 Hussey v. Jacobs (1794), 1 Salk. 344; 5 Mod. 170 (case 85) ; 
 1 Com. 4 - - - - 81, 98 
 
 Irwin v. Osborne (1856), 5 Ir. C. L. E. 404 - - 155, 159 
 
 Jaques-v. Grolightly (1776), 2 Bl. 1073 - - 120 
 
 Jaques v. Withy (1788), 1 H. Bl. 65 - - 121 
 
 Jeffreys v. Walker (1748), 1 Wils. 220- - 51 
 
 Jenkins, Ee (1891), 8 M. B. E. 36 ; 39 W. E. 430 - - 216 
 
 Jenks v. Turpin (1884), 13 Q. B. D. 505 ; 53 L. J. M. C. 161 ; 
 
 50 L. T. 808 ; 49 J. P. 20 ; 15 Cox, C. C. 486 - 37, 38, 41, 44, 
 
 164, 243, 253, 255, 259, 297, 318 
 
 Jennings v. Throgmorton (1825), E. & M. 251- - 113 
 
 Jessop v. Lutwyche (1854), 10 Ex. 614 ; 3 C. L. E. 359 ; 24 
 
 L. J. Ex. 65 - - 166, 178 
 
 Johnson v. Lansley (1852), 12 C. B. 468 - - 195
 
 XVI TABLE OF CASES. 
 
 PAGE 
 
 Jones v. Gordon (1877), 2 App. Cas. 616 ; 47 L. J. Bk. 1 ; 37 
 L. T. 477 ; 26 W. E. 172 - - - - - 95 
 
 Jones v. EandaU (1774), 1 Cowp. 37 ; Lofft, 383, 428 - 28, 144 
 Jones v. Smith (1841), 1 Hare, 43 - - - 95 
 
 Josephs v. Pebrer (1825), 3 B. & 0. 639 ; 5 D. & E. 542 ; 1 C. & P. 
 341, 507 - - - - - - - 124 
 
 Joy v. Campbell (1804), 1 Sch. & Lef. 328 - - - 135 
 
 Kearley v. Thomson (1890), 24 Q. B. D. 742 ; 59 L. J. Q. B. 
 
 288; 63 L. T. 150; 38 W. E. 614 - 118,129 
 
 Keays, Ee (1891), 9 M. B. E. 18 - - - 216 
 
 Keene v. Beard (1860), 8 C. B. N. S. 372 ; 29 L. J. 0. L. 287 ; 
 
 36 L. T. 240 ; 8 W. E. 469 - - - - - 97 
 
 Kenny v. Browne (1796), 3 Eidgway's Parl. Eep. 514 - 85, 89 
 Kent v. Bird (1777), Cowp. 583 - 23 
 
 Knight v. Cambers (1855), 15 C. B. 562 ; 3 C. L. E. 565 ; 24 
 
 L. J. C. P. 121 ; 1 Jur. N. S. 525 - - 11, 166, 178 
 
 Knight v. Fitch (1855), 15 C. B. 566 ; 3 C. L. E. 567 ; 24 L. J. 
 
 C. P. 122 ; 1 Jur. N. S. 526 - - - - - 11 
 
 Knight v. Lee, (1892) 1 Q. B. 41 ; 62 L. J. Q. B. 28 ; 67 L. T. 
 
 688 ; 41 W. E. 125 - - - - - - 199 
 
 Knowles v. Houghton (1805), 11 Ves. 168 - - 131 
 
 Lane v. Chapman (1841), 11 A. & E. 966, 980 - - 84 
 
 Langton v. Hughes (1813), 1 M. & S. 593 - - 108, 112 
 
 Lees v. Smith (1797), 7 T. E. 338 - - - 130 
 
 Lloyd v. Johnson (1798), 1 B. & P. 340 - 113, 115 
 
 Lorimer v. Smith (1822), 1 B. & C. 1 ; 2 D. & E. 23 - - 6 
 Loring v. Davis (1886), 32 Ch. Div. 625 ; 55 L. J. Ch. 725 ; 
 54 L. T. 899 ; 34 W. E. 701 - - - - 221 
 
 Lound v. Grimwade (1888), 39 Ch. Div. 605 ; 57 L. J. Ch. 725 ; 
 59 L. T. 168 - - - - - - 115 
 
 Low v. Bouverie (1891), 3 Ch. 82 ; 60 L. J. Ch. 594 ; 65 L. T. 
 533 ; 40 W. E. 50 - - - - - 201 
 
 Lowe v. "Waller (1781), 2 Doug. 735 - - 82 
 
 Lowenfeld, Liquidator of the Universal Stock Exchange Com- 
 pany, Limited v. Howat (1890), 17 C. S. C. 128, 4th series - 17 
 Lowry v. Bourdieu (1780), 2 Doug. 468 - - - 23, 117 
 
 Lucas v. Jones (1844), 5 Q. B. 949 ; D. & M. 774 ; 13 L. J. 
 Q. B. 208 ; 8 Jur. 422 ----- 188 
 
 Lynall v. Longbotham (1756), 2 Wils. 36 - - - 51, 52 
 
 Lynch v. Godwin (1882), 26 Sol. J. 509 - 180, 183 
 
 Lyne v. Siesfeld (1856), 1 H. & N. 278 - -124, 217 
 
 Lynn v. Bell (1876), 10 Ir. Eep. C. L. 487 - - 97, 103, 105
 
 TABLE OF CASES. XV11 
 
 PAGE 
 
 MacNee v. The Persian Investment Corporation (1890), 44 Oh. 
 
 Div. 306 ; 59 L. J. Oh. 695 ; 62 L. T. N. S. 894 ; 38 W. E. 59 - 65 
 M'Alister v. Haden (1810), 2 Camp. 438 - 53 
 
 M'Gregor v. Lowe (1824), 1 E. & M. 57 ; 1 0. & P. 200 - - 127 
 M'Kinnell v. Eobinson (1838), 3 M. & W. 434 - 113, 203 
 
 Mangles v. Dixon (1848), 1 M. & G. 437 - - - 89 
 
 Manning v. Purcell (1855), 7 De G. M. & G. 55 ; 24 L. J. Oh. 
 
 522 ; 2 S. & G. 284 - - - - - 167, 172 
 
 March (Earl of) v. Pigot (1771), 5 Burr. 2802 - - - 29 
 
 Marnham, Ex parte (1860), 2 De G. F. & J. 634; 30 L. J. 
 
 Bk. 1 ; 6 Jur. N. S. 1273 ; 3 L. T. 516 ; 9 W. E. 131 - 211 
 
 Marryat v. Broderick (1837), 2 M. & W. 369; 1 Jur. 242 - 146, 190 
 Martin v. Gibbon (1875), 33 L. T. N. S. 561 ; 24 W. E. 87 - 7, 25, 
 
 214 
 Martin v. Hewson (1855), 10 Ex. 737; 24 L. J. Ex. 174; 1 Jur. 
 
 N. S. 214 - 10, 191 
 
 Martin v. Pridgeon (1859), 1 E. & E. 778 ; 28 L. J. M. 0. 179 ; 
 
 5 Burr. N. S. 894; 33 L. T. 119; 7 W. E. 412; 8 Cox, C. 0. 
 
 170 - - - - - - - - 228 
 
 Marzetti's case (1880), 42 L. T. 206 ; 28 W. E. 541 - - 215 
 
 Mather, Ex parte (1797), 3 Ves. 373 - - 108 
 
 Matheson, Ex parte (1852), 1 De G. M. & G. 448 ; 21 L. J. 
 
 Bk. 18 ; 16 Jur. 769 - - - - - - 216 
 
 Matthews v. Wallwyn (1798), 4 Ves. 118 - 85 
 
 May v. Chapman (1847), 16 M. & W. 355 - - - 95 
 
 Mearing v. Hillings (1845), 14 M. & W. 711 ; 15 L. J. Ex. 168 70 
 Milnes v. Bale (1875), L. E. 10 0. P. 591 ; 44 L. J. C. P. 336 - 224 
 Mitchell v. Cockburn (1794), 2 H. Bl. 380 - 108, 110, 130 
 
 Mogul Steamship Co. v. McGregor (1892), 23 Q. B. D. 598; 
 
 affirmed (1892) App. Cas. 26 ; 61 L. J. Q. B. 295 ; 66 L. T. 1 ; 
 
 40 W. E. 337 - - - - - - - 142 
 
 Monopolies, Case of (1826), 11 Co. Eep. 87 b - - 34 
 
 Moore v. Durden (1848), 2 Ex. 22; 12 Jur. 138 - - - 199 
 
 Moore v. Peachey (1891), 7 T. L. E. 748 - - 189 
 
 Moore v. Willcox and Others (not reported) - - 268 
 
 Morley v. Greenhalgh (1863), 3 B. & S. 374; 32 L. J. M. C. 
 
 93 ; 9 Jur. N. S. 745 ... 253 
 
 Morris v. Blackman (1864), 2 H. & C. 912; 10 Jur. N. S. 520; 
 
 28 J. P. 199 - - - - - - 72 
 
 Mortimer v. M'Calln (1842), 9 M. & W. 636 ; 4 Jur. 172 - 134, 221 
 Mullins v. Collins (1874), L. E. 9 Q. B. 292 ; 43 L. J. M. C. 
 
 67 ; 29 L. T. 838; 22 W. E. 297; 38 J. P. 629 - - - 309 
 
 Noilson v. James (1882), 9 Q,. B. D. 546 ; 51 L. J. Q. B. 369 ; 
 46 L. T. 791 - ... 219 
 
 G. b
 
 XV111 TABLE OF CASES. 
 
 PAGE 
 
 Newcomen v. Lynch (1876), Ir. Eep. 9 0. L. 1; affirmed on 
 
 appeal, Ir. Eep. 10 0. L. 248 - - - - 150 
 
 Newport's case (1694), Cas. t. Holt, 477 ; Skinner, 423 - 98 
 
 Nicholas, Ee (1890), 7 M. B. E. 54 - - 216 
 Nicholson v. Gooch (1856), 5 E. & B. 999; 25 L. J. Q. B. 137; 
 
 2 Jur. N. S. 303 - - - - - 127, 216 
 
 NoeU v. Eeynolds (1680), 2 Show. 467 - - 53 
 
 Oakeley v. Ooddeen (1862), 11 C. B. N. S. 805 ; 2 Fos. & Fin. 
 656 - - - - - - - - 95 
 
 O'Connor v. Bradshaw (1859), 5 Ex. 882 ; 20 L. J. Ex. 26 - 76 
 Ogilvie v. Jeaffreson (1859), 2 Giff. 353 - 87 
 
 Oldham v. Eamsden (1875), 44 L. J. 0. P. 309 ; 32 L. T. 825 - 183, 
 
 291 
 
 O'Sullivan v. Thomas, (1895) 1 Q. B. 698 ; 64 L. J. Q. B. 398 - 204 
 Ottley v. Browne (1810), 1 Ball & B. 360 - - - 135 
 
 Ovenden v. Eaymond (1876), 34 L. T. 698 ; 40 J. P. 727 - 317 
 
 Paine v. Hutchinson (1868), L. E. 3 Oh. 388 ; 37 L. J. Oh. 485 - 219 
 Parker v. Clarke (1861), 30 Beav. 54; 7 Jur. N. S. 1267; 
 
 9 W. E. 877 - - - - - 87, 99 
 
 Parr v. Winteringham (1859), 1 El. & El. 394; 28 L. J. Q. B. 
 
 123 ; 5 Jur. N. S. 787 ; 7 W. E. 288 - - - - 149 
 
 Parsons v. Alexander (1855), 24 L. J. Q. B. 277; 1 Jur. N. S. 
 
 660; 5E. & B. 263 - 138,158,316 
 
 Patten v, Ehymer (1860), 3 El. & El. 1 ; 29 L. J. M. 0. 189; 
 
 2 L. T. 352 ; 6 Jur. 1030 ; 8 W. E. 496 ; 24 J. P. 342 - - 313 
 Payne v. Mayor of Brecon (1858), 3 H. & N. 572; 27 L. J. Ex. 
 
 495 - - - - - - - - 110 
 
 Pearce v. Brookes (1866), L. E. 1 Ex. 213 ; 35 L. J. Ex. 134 ; 
 
 12 Jur. N. S. 342 ; 14 L. T. 288 ; 14 W. E. 614 - - 114, 203 
 
 Perry v. Barnett (1885), 14 Q. B. D. 467; affirmed on appeal, 
 
 15 Q. B. D. 388 ; 54 L. J. Q. B. 466 ; 53 L. T. 585 - 218, 220 
 Petrie v. Hannay (1789), 3 T. E. 418 - 108, 109, 131 
 
 Pope v. St. Leger (1693), 1 Salk. 344 - 34, 52 
 
 Portarlington v. Soulby (1834), 3 M. & K 104 - - - 96 
 
 Potts v. Sparrow (1835), 1 Bing. N. 0. 594 - - - 116 
 
 Pugh v. Jenkins (1841), 1 Q. B. 631; 1 G. & D. 40; 5 Jur. 
 
 1082 - 2, 52 
 
 Pyke, Ex parte, In re Lister (1878), 8 Oh. Div. 754; 47 L. J. 
 
 Bk. 100 ; 38 L. T. 923 ; 26 W. E. 806 55, 180 
 
 Quarrier v. Colston (1842), 1 Ph. 147 ; 12 L. J. Ch. 57 ; 6 Jur. 
 959 54
 
 TABLE OF CASES. XIX 
 
 PAGE 
 
 Kankin, Ex parte (1887), 5 M. B. E. 23 - - - - 216 
 
 Bawden v. Shadwell (1755), 1 Amb. 268 - 84, 86, 90 
 
 Bead v. Anderson (1882), 10 Q,. B. D. 100; 13 Q. B. D. 779; 
 
 52 L. J. Q. B. 214 ; 48 L. T. 74 ; 31 W. E. 453 ; 47 J. P. 311 - 166, 
 
 181, 184, 187, 221 
 Eedgate v. Haynes (1876), 1 Q. B. D. 89 ; 45 L. J. M. 0. 65 ; 
 
 33 L. T. 779; 41 J. P. 86 - - - - 308 
 
 Eeggio v, Stevens (1888), 4 T. L. E. 326 - - 20, 173 
 
 Eeg. v. Andover JJ. (1886), 16 Q. B. D. 711 ; 55 L. J. M. 0. 
 
 143 ; 55 L. T. 33 ; 2 T. L. E. 546 ; 50 J. P. 549; 34 W. E. 456 - 315 
 Eeg. v. Ashton (1852), 1 E. & B. 286; 22 L. J. M. 0. 1 ; 17 
 
 Jur. 501 - - 39, 242 
 
 Eeg. v. Aspinall (1876), 2 Q. B. D.48; 46 L. J. M. C. 145; 36 
 
 L. T. 297 ; 25 W. E. 283 ; 13 Cox, 0. 0. 563 ; affirming 1 Q. 
 
 B. D. 730 ; 35 L. T. 738 ; 24 W. E. 921 ; 13 Cox, C. C. 230 - 215 
 Eeg. v. Brickhall (1864), 33 L. J. M. C. 156; 10 L. T. 385; 10 
 
 Jur. N. S. 677 - - - 228 
 
 Eeg. v. Brown, (1895) 1 Q. B. 119; 64 L. J. M. C. 1 - 237, 264, 291 
 Eeg. v. Buckmaster (1887), 20 Q. B. D. 182 ; 57 L. J. M. C. 25; 
 
 57 L. T. 720 ; 36 W. E. 701 ; 52 J. P. 358 ; 16 Cox, C. C. 339 - 303 
 Eeg. v. Cook (1884), 13 Q. B. D. 377; 51 L. T. 21; 32 W. E. 
 
 796 ; 48 J. P. 694 - 260, 297, 298 
 
 Eeg. v. Devonshire JJ. (1857), 21 J. P. 773 - - 317 
 
 Eeg. v. Elrington (1861), 1 B. & S. 688; 31 L. J. M. C. 14; 
 
 8 Jur. N. S. 97; 5 L. T. 284 ; 10 W. E. 13 ; 9 Cox, C. C. 86 - 231 
 Eeg. v. Glamorgan JJ., (1892) 1 Q. B. 620 ; 61 L. J. M. C. 169; 
 
 66 L. T. 444 ; 40 W. E. 436 ; 56 J. P. 437 - - 232 
 
 Eeg. v. Godfrey and others (1895), "Sportsman" and "Sport- 
 ing Life," 13th and 18th February - - 234, 297 
 Eeg. v. Harris (1866), 10 Cox, C. C. 352 - - - 72 
 Eeg. v. Hoard (1842), 6 J. P. 445 - 224 
 Eeg. v. Hughes (1879), 4 Q. B. D. 614; 48 L. J. M. C. 151 - 223, 225 
 Eeg. v. McKenzie, (1892) 2 Q. B. 519; 61 L. J. M. C. 181 ; 67 
 
 L. T. 201 ; 41 W. E. 144; 56 J. P. 712 - - - 223 
 
 Eeg. v. Miles (1890), 24 Q. B. D. 423; 59 L. J. M. C. 56; 62 
 
 L. T. 572 ; 38 W. E. 334 ; 54 J. P. 594 ; 17 Cox, C. C. 9 - 231 
 Eeg. v. Preedie (1888), 17 Cox, C. C. 433 - 262, 264, 272, 285, 287, 
 
 296 
 Eeg. v. Eice (1866), L. E. 1 C. C. E. 21 ; 35 L. J. M. C. 93 ; 12 
 
 Jur. N. S. 126 ; 13 L. T. 382 ; 14 W. E. 56; 10 Cox, C.C. 155 - 41, 
 
 241 
 
 Eeg. v. Shaw (1865), 34 L. J. M. C. 169; 10 Cox, C. C. 66; 
 
 L. & C. 579 ; 11 Jur. N. S. 415 ; 12 L. T. 470 ; 13 W. E. 692- 226 
 Eeg. v. Surrey JJ. and Bell, (1892) 2 Q. B. 719; 61 L. J. M. 0. 
 
 200 ; 66 L. T. 578 - - 233 
 
 Beg. v. Tuddenham (1841), 9 Dowl. 937; 10 L. J. M. C. 163 - 329
 
 XX TABLE OF CASES. 
 
 i 
 
 PAGE 
 
 Eeg. v. Worcester JJ. (1839), 7 Dowl. 789 - - 330 
 
 Eex v. Crawshaw (1860), 1 Bell, C. C. 303 ; 8 Cox, C. C. 375 - 319, 
 
 324, 326 
 
 Eex v. Daman (1819), 1 Chit. 147 ; 2 B. & Aid. 378 - - 224 
 
 Eex v. De Berenger (1814), 3 M. & S. 67 - 215 
 
 Eex v. Dixon (1716), 10 Mod. 336 (Case 176) - 239, 243, 244 
 Eex v. Gregory (1833), 5 B. & Ad. 555 - 326 
 
 Eex v. Hanson (1821), 4 B. & Aid. 519 - - - 330 
 
 Eex v. Howel (1675), 3 Keb. 465, 510 - - 60 
 
 Eex v. Marsh (1824), 4 D. & E. 260 - - 224 
 
 Eex v. Mason (1788), 1 Leach, 487 (Case 224) - - 240 
 
 Eex v. Moore (1832), 3 B. & Ad. 184 - - 281 
 
 Eex v. Eogier (1823), 1 B. & C. 272; 2 D. & E. 431 - 38, 164, 240 
 Eex v. Stone (1805), 6 East, 514 - - - 330 
 
 Eex v. Surrey JJ. (1788), 2 T. E. 504 - - 330 
 
 Eex v. Trelawney (1786), 1 T. E. 222 - - 224 
 
 Eex v. Walsh (1812), 4 Taunt. 258; 2 Lea, C. C. 1054 - - 303 
 
 Eobinson v. Bland (1760), 2 Burr. 1077 - - 54, 82 
 
 Eobinson v. Mearns (1825), 6 D. & E. 26 - 129 
 
 Eobinson v. Mollett (1875), L. E. 7 H. L. 802 ; 44 L. J. C. P. 
 362 ; 33 L. T. 544 ; reversing L. E. 7 C. P. 84 ; 41 L. J. C. P. 
 65 ; 26 L. T. 207 ; 20 W. E. 544 - - 219 
 
 Eobson v. Bennett (1810), 2 Taunt. 387 - - - 97 
 
 Eobson v. Hall (1792), Peake, 172 - - 154 
 
 Eoddy v. Stanley, 5 Ir. Jur. 10 - - - 72 
 
 Eodgers v. Eichards, (1892) 1 Q. B. 555 ; 66 L. T. 261 ; 40 W. E. 
 
 331 ; 56 J. P. 281 ; 17 Cox, C. C. 475 - - - 224 
 
 Eogers, Ex parte, In re Eogers (1880), 15 Ch. Div. 207; 43 
 
 L. T. 163; 29 W. E. 29 - 211 
 
 Eogers, Ex parte (1884), 13 Q. B. D. 438; 33 W. E. 354; 
 
 1 M. B. E. 159 - - - - - - - 216 
 
 Eosewarne v. Billing (1863), 15 C. B. N. S. 316; 33 L. J. C. P. 
 
 55 ; 10 Jur. N. S. 496 ; 9 L. T. 441 ; 12 W. E. 104 - 166, 178, 183 
 Eourke v. Short (1856), 5 El. & Bl. 904; 25 L. J. Q. B. 196; 
 
 2 Jur. N. S. 352 - 21, 170 
 Eyder, Ex parte (1857), 1 De G. & J. 317; 26 L. J. Bk. 69; 
 
 3 Jur. N. S. 1159 - - - - - -216 
 
 Sadler v. Smith (1869), L. E. 4 Q. B. 214 ; 38 L. J. Q. B. 91 ; 
 
 19 L. T. 779; 17 W. E. 371; affirmed, L. E. 5 Q. B. 40; 
 
 39 L. J. Q. B. 17 ; 21 L. T. 502 ; 18 W. E. 148 - - 152 
 
 Salamon, Ex parte (1880), 14 Q. B. D. 936; 54 L. J. Q. B. 
 
 238 ; 52 L. T. 378 - - - 216 
 
 Savage v. Madder (1867), 36 L. J. Ex. 178 ; 16 L. T. 600 ; 15 
 
 W. E. 910 193
 
 TABLE OF CASES. 
 
 PAGE 
 
 Scott v. Brown & Co., (1892) 2 Q. B. 724 ; 4 E. 42 ; 61 L. J. 
 
 Q. B. 738; 67 L. T. 782; 41 W. E. 116; 57 J. P. 213 - 116, 215 
 Seymour v. Bridge (1885), 14 Q. B. D. 460 ; 54 L. J. Q. B. 
 
 347 ; 29 S. J. 480 . . 221 
 
 Shackell v. Eosier (1836), 2 Bing. N. 0. 646 - - - 115 
 
 Sharp v. Taylor (1848), 2 Ph. 801 - - - 131, 132, 196 
 
 Shaw v. Bailey (1893), Times Newspaper, 24 Jan. - - 18 
 
 Shaw v. Caledonian Eailway Co. (1890), 17 C. S. C. 466 (4th 
 Series) - - - - - - _ _ 14 
 
 Shaw v. Morley (1868), L. E. 3 Ex. 137; 37 L. J. M. C. 105; 
 
 19L.T. 15; 16W.E. 763 - - 272,276 
 
 Shaw v. Picton (1825), 7 D. & E. 201 ; 4 B. & C. 715 - - 188 
 Sherborn v. Colebach (1691), 2 Vent. 175 - - 35 
 
 Shilleto v. Sheed (1831), 7 Bing. 405 - - - 83 
 
 Simpson v. Bloss (1816), 7 Taunt. 246- - - - 122 
 
 Sims v. Pay (1889), 58 L. J. M. C. 39 ; 60 L. T. 602; 16 Cox, 
 
 C. C. 609 ; 53 J. P. 420 - - - - - - 306 
 
 Skyring v. Greenwood (1825), 4 B. & C. 281 ; 6 D. & E. 401 ; 
 
 1 C. & P. 517 - - - - - - 188 
 
 Slatter v. Bailey (1872), 37 J. P. 262 - - - 297 
 
 Smith v. Aiery (1704), 6 Mod. 128 - - - 35 
 
 Smith v. Anderson (1880), 15 Ch. Div. 247; 50 L. J. Ch. 47; 
 
 43 L. T. 336; 29 W. E. 22 - 77, 131, 132, 134 
 
 Smith v. Bickmore (1812), 4 Taunt. 474 - - 128 
 
 Smith v. Bromley (1781), 2 Doug. 695 - - - 119 
 
 Smith v. Cuff (1817), 6 M. & S. 160 - - 119 
 
 Smith v. Littledale (1866), 15 W. E. 69 - - - 150 
 
 Snow v. Hill (1885), 14 Q. B. D. 588 ; 54 L. J. M. C. 95 ; 52 
 
 L. T. 859 ; 33 W. E. 475 ; 49 J. P. 440 ; 15 Cox, C. C. 737 - 284, 
 
 288, 289 
 Somerset v. Hart (1884), 12 Q. B. D. 360 ; 53 L. J. M. C. 77 ; 
 
 48 J. P. 327 ; 32 W. E. 594 - - 310 
 
 Somerset v. Wade, (1894) 1 Q. B. 574; 63 L. J. M. C. 126; 10 
 
 E. 105 ; 70 L. T. 452 ; 10 T. L. E. 313 ; 58 J. P. 231 ; 42 
 
 W. E. 399 - 307, 310, 312 
 
 South Wales Atlantic Steamship Co., In re (1875), 2 Ch. Div. 
 
 763; 46 L. J. Ch. 177 ; 35 L. T. 294 - 130 
 
 Squiers v. Whisken (1811), 3 Camp. 140 - - - 60 
 
 Standish v. Eoss (1850), 3 Ex. 527 ; 19 L. J. Ex. 185 - - 188 
 
 Steers v. Lashley (1794), 6 T. E. 61 - 108, 110, 125 
 
 Stoddart v. Sagar (1895), T. L. E. (No. 35), Vol. XI. 568 - 75 
 Strachan v. The Universal Stock Exchange, (1895) 2 Q. B. 
 
 329 ; 43 W. E. 611 - 14, 169 
 
 Sullivan v. Greaves (Park on Insurance, p. 8)- - . - 110
 
 XX11 TABLE OF CASES. 
 
 PAGE 
 
 Sykes v. Beadon (1879), 11 Ch. Div. 170; 48 L. J. Oh. 522; 
 
 40 L. T. 243; 27 W. E. 464 - 77, 131, 132, 134 
 
 Symes v. Hughes (1870), L. E. 9 Eq. 475 ; 39 L. J. Ch. 304 ; 
 
 22 L. T. 462 - - - - - - 118 
 
 Tappenden v. Eandall (1801), 2 B. & P. 467 - - 117 
 
 Tatam v. Haslar (1889), 23 Q. B. D. 345 ; 58 L. J. Q. B. 432 ; 
 
 38 W. E. 109 - - - - - - - 94 
 
 Tatam v. Eeeve, (1893) 1 Q. B. 44 ; 62 L. J. 0. L. 30 ; 5 E. 83 ; 
 
 67 L. T. 683; 41 W. E. 174; 57 J. P. 118 - - 199,202 
 
 Taylor v. Bowers (1875), 1 Q. B. D. 291 ; 45 L. J. Q. B. 163 ; 
 
 34 L. T. 263 ; 24 W. E. 499 - - - - - 117 
 
 Taylor v. Chester (1868), L. E. 4 Q. B. 309; 38 L. J. Q. B. 
 
 225 ; 21 L. T. 359 ; 17 W. E. 94 - 123 
 
 Taylor v. Smetten (1883), 11 Q. B. D. 207 ; 52 L. J. M. 0. 101 ; 
 
 48 J. P. 36 - - - - - 69, 73, 329 
 
 Tenant v. Elliott (1797), 1 B. & P. 3 - - 125, 133 
 
 Thacker v. Hardy (1879), 4 Q. B. D. 685; 48 L. J. Q. B. 289 ; 
 
 39 L. T. 595 ; 27 W. E. 158 - - -11,211 
 Thistlewood v. Oracroft (1813), 1 M. & S. 500 - - 119 
 Thomson v. Thomson (1802), 7 Ves. 470 - 125. 131, 134, 135 
 Thornton v. Thackray (1828), 2 Y. & J. 156 - - 30 
 Toilet v. Thomas (1871), L. E. 6 Q. B. 514; 40 L. J. M. 0. 209 ; 
 
 24 L. T. 508 ; 19 W. E. 246 - - - - 318 
 
 Trimble v. Hill (1880), 5 App. Cas. 342 ; 49 L. J. P. 0. 49 ; 42 
 
 L. T. 103 ; 28 W. E. 479 - 145, 163, 193 
 
 Turner v. Postmaster -General (1864), 5 B. & S. 756; 34 L. J. 
 
 M. 0. 10; 11 L. T. 369; 11 Jur. N. S. 137; 10 Cox, C. C. 
 
 15 ; 13 W. E. 89 - - - - 226 
 
 Turner v. Warren (1738), 2 Strang. 1079 - 90 
 
 Twycross v. Grant (1877), 2 C. P. D. 469 ; 46 L. J. C. P. 636 ; 
 
 36 L. T. 812 ; 25 W. E. 701 - - - 215 
 
 Universal Stock Exchange, Limited v. Stevens (1892), 40 W. E. 
 
 494; 66 L. T. 612 - - 18 
 
 TJnwin v. Leaper (1840), 1 Drink. 3; 1 M. & G. 747; 4 Jur. 
 
 1037 - - - - - - - 119 
 
 Varney v. Hickman (1847), 5 C. B. 271; 5 D. & L. 364; 17 
 L. J. C. P. 102 - - - - 10, 116, 140, 191 
 
 Wade, Ex parte (1856), 8 De G. M. & G. 241 - - 216 
 
 Waite v. Jones (1835), 1 Bing. N. C. 656; 1 Scott, 730 - - 115 
 Walker v. Symonds (1818), 3 Sw. 1 - - - - 87
 
 TABLE OF CASES. XX111 
 
 PAGE 
 
 Walker v. Walker (1694), 5 Mod. 13 - - - - 27 
 
 Wallingford v. The Mutual Society (1880), 5 App. Gas. 685; 
 
 50 L. J. Q. B. 49 ; 43 L. T. 258 ; 29 W. E. 81 - - - 78 
 
 Walmsley v. Mathews (1841), 3 Scott, N. B. 584; 3 M. & G. 
 
 133 ; 5 Jur. 508 - 154 
 
 Ware v. Egmont (1854), 4 De Or. M. & G. 460 - - - 95 
 
 Watts v. Brooks (1798), 3 Ves. 612 - - 131 
 
 Webb v. Brooke (1810), 3 Taunt. 6 - - - - 108 
 
 Webster v. De Tastet (1797), 7 T. E. 157 - 124, 177 
 
 Weller v. Deakin (1827), 2 0. & P. 618 - - 146, 154 
 
 Wells v. Porter (1836), 3 Scott, 141 ; 2 Bing. N. 0. 722 - 217 
 
 Wemyss v. Hopkins (1875), L. E. 10 Q. B. 378 ; 44 L. J. 
 
 M. C. 101 ; 33 L. T. 9 ; 23 W. B. 691 - - 231 
 
 Wettenhall v. Wood (1793), 1 Esp. 17 - - 54 
 
 Whitgrave v. Chancey (1699), 1 Lut. 180 - - 35 
 
 Williams v. Hedley (1807), 8 East, 378 - - - 119 
 
 Williams v. SorreU (1799), 4 Ves. 389 - - 87 
 
 Williams v. Trye (1854), 18 Beav. 366 ; 23 L. J. Oh. 860 ; 18 
 
 Jur. 442 - - - - - - - 217 
 
 Wilson v. Cole (1877), 36 L. T. N. S. 703 - 170 
 
 Wilson v. Eay (1839), 10 Ad. & El. 82 ; 3 Jur. 384 ; 2 P. & D. 
 
 253 - - - - - - - - 119 
 
 Wilson v. Strugnell (1881), 7 Q. B. D. 548; 50 L. J. M. C. 
 
 145; 45 L. T. 218; 45 J. P. 831 - -118 
 
 Wood v. Leadbitter (1845), 13 M. & W. 838 ; 14 L. J. Ex. 
 
 161 - - 298 
 
 Woodroffe v. Farnham (1693), 2 Vern. 290 - - 37 
 
 Wray v. Ellis (1858), 1 El. & El. 276; 28 L. J. M. C. 45; 23 
 
 Jur. 624 ; 32 L. T. 157 - - - 252 
 
 Wright v. Clarke (1870), 34 J. P. 661 - - 294 
 
 Wynne v. Callander (1826), 1 Euss. 293 - - - - 84 
 
 Youdan v. Crookes (1858), 22 J. P. 287 - 74 
 
 Young, Ex parte (1885), 2 M. B. E. 37 - - - 216 
 
 Young v. Moore (1757), 2 Wils. 67 - - - 54
 
 Part I.-CIVIL. 
 CHAPTEE I. 
 
 WAGERING CONTRACTS. 
 
 THERE are two essential characteristics of a wagering Characteris- 
 contract : first, an unascertained event ; secondly, the ing contracts. 
 parties to the contract must stand respectively either to 
 gain or lose, according as the uncertainty shall be de- 
 termined in the one way or in the other. 
 
 The consideration for the contract consists in the The con- 
 mutual promises to pay made by the parties one to the 
 other, according to the event of the uncertainty. Such 
 mutual promises would be lacking in the following 
 instance : A. promises B. that if B. makes one hundred 
 runs in a certain cricket match, he (A.) will give him a 
 present. Either B. will make one hundred runs or he 
 will fail to do so ; if he succeeds he becomes entitled 
 to the present, but if he fails he has not promised to 
 make a payment to A. Such a contract does not 
 involve in each event a necessary winner and a loser ; 
 if B. fails, he suffers merely the negation of a gain, 
 and A. wins nothing. 
 
 The event involved must be uncertain, although it The uncertain 
 may at the time of contracting be either past or future. 
 
 G. B
 
 2 THE LAW OF GAMBLING. 
 
 If it is past in time, then, in so far as it has happened, 
 it is certain, and beyond the control of the parties ; but 
 if the result has not been ascertained by the parties, 
 then, quoad them, it is uncertain, and as between them 
 can be properly made the subject of a wager (). With 
 regard to future events, their uncertainty is a matter of 
 degree, for whilst, on the one hand, the event is abso- 
 lutely certain to no one, yet, on the other hand, it may 
 be more or less controllable. An engineer can control 
 the event of whether an engine he is constructing shall 
 be of more or less than two hundred horse-power. A 
 builder has more or less control over the date of the 
 completion of a house which he is building. Such 
 instances are different from those of races, where one 
 competitor can have no honest control over another. 
 When the uncertain event is clearly under the control 
 of one of the parties, it is highly improbable that any 
 contract by those parties in relation to such an event 
 will be a wagering one. 
 
 Carlill v. The The essentials of a wagering contract were considered 
 BadCem- in the recent case of Carlill v. The Carbolic Smoke Ball 
 pany. Company (6) . The defendants, who were the proprietors 
 
 and vendors of a medical preparation called the " Car- 
 bolic Smoke Ball," inserted in the newspapers the fol- 
 lowing advertisement : " 100 reward will be paid by 
 the Carbolic Smoke Ball Company to any person who 
 contracts the increasing epidemic influenza colds, . . . 
 after having used the ball three times daily for two 
 weeks, according to the printed directions supplied with 
 
 (a) PugTi v. Jenkins, 1 Q. B. 631 ; 1 G. & D. 40; 5 Jur. 1082. 
 
 (6) Carlill v. The Carbolic Smoke Sail Company, (1892) 2 Q. 
 B. 484 ; 61 L. J. Q. B. 696; 56 J. P. 665 ; affirmed, (1893) 1 Q. B. 
 256; 62 L. J. Q. B. 257; 4 E. 176; 67L.T.837; 41 W. E. 210; 
 57 J. P. 325.
 
 WAGERING CONTRACTS. 
 
 each ball. . . . During the last epidemic of influenza 
 many thousand carbolic smoke balls were sold as pre- 
 ventatives against this disease, and in no ascertained 
 case was the disease contracted by those using the car- 
 bolic smoke ball. . . ." The plaintiff, having read the 
 advertisement, bought, on the faith of it, one of the de- 
 fendants' carbolic smoke balls, and used it as directed, 
 and, whilst so doing, was attacked by influenza. She 
 thereupon sued to recover the 100/. The defendants, 
 amongst other pleas, pleaded that the contract was a 
 wagering one. Hawkins, J., said : " It is not easy to 
 define with precision what amounts to a wagering con- 
 tract, nor the narrow line which separates a wagering 
 from an ordinary contract ; but, according to my view, 
 a wagering contract is one by which two persons, pro- 
 fessing to hold opposite views touching the issue of a 
 future (c) uncertain event, mutually agree that, depen- 
 dent upon the determination of that event, one shall 
 win from the other, and that other shall pay or hand 
 over to him, a sum of money or other stake, neither of 
 the contracting parties having any other interest in that 
 contract than the sum or stake he will so win or lose, 
 there being no other real consideration for the making 
 of such contract by either of the parties. It is essential 
 to a wagering contract that each party may under it 
 either win or lose, whether he will win or lose being 
 dependent on the issue of the event, and therefore re- 
 maining uncertain until that issue is known. If either 
 of the parties may lose but cannot win, it is not a 
 wagering contract." One of the essential elements of a 
 wagering contract was, therefore, in this case absent. 
 The defendants promised to pay the 1001. in the event 
 
 (c) But see p. 2.
 
 4 THE LAW OF GAMBLING. 
 
 of the plaintiff contracting the influenza. But if the 
 plaintiff did not contract the disease, the defendants 
 gained nothing, for there was no promise on the plain- 
 tiff's part to pay or do anything if the ball had the 
 desired effect. In this judgment it is noticed that in 
 some instances the question of the intention of the par- 
 ties is at issue, and for a wagering contract both parties 
 must intend to make the gain or loss involved in the 
 second essential characteristic. This element of inten- 
 tion is denoted by the term mutuality, and will be dis- 
 cussed in connection with difference transactions, where 
 it is of much importance. 
 
 Non-wager- Many contracts involving elements of uncertainty are 
 i Warranties f un d> when tested by the essential characteristics of a 
 and liqui- wager, not to be wagering contracts. As ancillary to a 
 contract for sale and purchase, the vendor warrants the 
 article to the purchaser, and agrees with him to pay 
 liquidated damages for a breach of the warranty. An 
 engineer agrees with a mine owner to make an engine 
 for a certain price, with not less than a certain pumping 
 power. If the engine, when made and delivered, shall 
 be of less power, then the engineer agrees to pay the 
 
 mine owner a fixed sum ( /.) by way of liquidated 
 
 damages. Here the unascertained event is the power 
 of the engine, and on that event will depend whether or 
 not the engineer will be obliged to pay the mine owner 
 
 the /. The unascertained event is controllable by 
 
 the engineer, and the transaction involves neither a 
 winner nor a loser. In any event, the mine owner 
 obtains an engine, and pays the agreed price ; if the 
 engine is of less power than stipulated for, he is com- 
 pensated by the liquidated damages ; but presumably 
 the engineer has spent less money in making the ineffi- 
 cient engine than he would have done in making an 
 efficient one, and cannot therefore be said to lose by
 
 WAGERING CONTEACTS. 5 
 
 being compelled to make the payment of the 1. Of 
 
 a similar character are contracts of guarantee. A. en- Contracts of 
 gages B. to render personal services of a fiduciary s 
 character : C. guarantees A. against loss from the dis- 
 honesty of B. ; B. may, in the event, prove dishonest, and 
 whether he will or will not is, at the time of making the 
 contract, uncertain. But though C. may lose money by 
 having to make a payment to A. on account of that 
 dishonesty, yet, if B. had continued honest, A. would 
 not have had to pay anything to C. ; therefore C. may 
 lose, but he cannot win under his contract with B., and 
 the contract is, of course, no wager. C. may be induced 
 to incur the risk of that contract, because he is morally 
 certain that the risk is, in fact, nothing. On the other 
 hand, if C. and B. are strangers, and C. only enters into 
 the contract of guarantee with A. because B. undertakes - 
 to make certain annual payments to 0., then certainly 
 C. stands either to win or to lose according to the event; 
 but B. stands to lose his annual payments, but he does 
 not stand to win anything from C. In no event will 
 C. pay anything to B. ; his payment to A. will be 
 under his separate contract of guarantee with A., and 
 will not be made as the agent of B. and on behalf of B. 
 The case approximates to, but does not amount to a 
 wager between B. and C. 
 
 Again, in contracts for sale and purchase the price a. Sales con- 
 
 T T j',i i i> i i T7i ditional as to 
 
 may be made conditional on a iuture event, ror pr i ce . 
 example : A mine owner has a mine of great value, 
 provided that not less than 200 gallons of water per 
 minute are pumped out of it, but worthless if the 
 water is removed at the rate of 190 gallons per minute 
 only ; he therefore agrees with an engineer to purchase 
 an engine which, when made, shall be powerful enough 
 to pump and raise 200 gallons of water per minute,
 
 THE LAW OF GAMBLING. 
 
 and it is made a condition of the contract that if the 
 engine reaches the required standard that the price shall 
 "be 1,000/., but if it falls short of the requirements of 
 the mine owner that the price shall be only 51. (d}. 
 The event whether or not the engine reaches the 
 standard is under the control of the engineer, and the 
 aim of the contract is to minimize the uncertainty. In 
 the one event, the mine owner obtains what he wants, 
 and pays the 1,000, which presumably is a reasonable 
 price. In the other event, he obtains that which will 
 not make the mine valuable, and pays the 5/. as the 
 price. His gain (if any) would depend on a possible 
 re-sale. The engineer's loss (if any) is a result of 
 his own default. Such a transaction would not be 
 a wagering contract. 
 
 iii. Specula- The fact that a contract of sale and purchase is of 
 a highly speculative character, involving elements of 
 future uncertainty, does not make the contract a wager- 
 ing one. Lord Tenterden, it is true, at a time of grave 
 commercial depression, held, in Lorimer v. Smith (e), 
 that a man could not validly bargain to deliver corn 
 not then in his possession, and rely on making a future 
 purchase in time to fulfil his undertaking ; and four 
 years later, in 1826, in the case of Bryan v. Lewis (/), 
 the learned judge laid down the principle, " If a man 
 sells goods to be delivered on a future day, and 
 neither has the goods at the time, nor has entered into 
 any prior contract to buy them, nor has any reasonable 
 expectation of receiving them by consignment, but 
 means to go into the market and to buy the goods 
 
 (d} Brogdenv. Marriott, 3 Bing. N. 0. 88; 2 Scott, 712; 2 
 Hodges, 136. 
 
 (e) Lorimer y. Smith, 1 B. & 0. 1 ; 2 D. & E. 23. 
 (/) Bryan v. Lewis, Ey. & M. 386.
 
 WAGERING CONTRACTS. 
 
 which he has contracted to deliver, he cannot maintain 
 an action upon such a contract. Such a contract 
 amounts on the part of the vendor to a wager on 
 the price of the commodity, and is attended with the 
 most mischievous consequences." 
 
 But in the case of Hibbleivhite v. M 1 Mori-tie (g) this 
 principle was pleaded by way of defence to a declara- 
 tion on a contract of sale for future delivery of certain 
 shares. The Court (Parke, B., Alderson, B., Maule, B.) 
 were unanimously of opinion that the principle was 
 justifiable neither in law nor on the grounds of com- 
 mercial expediency. Parke, B., said : " Such a con- 
 tract does not amount to a wager, inasmuch as both 
 the contracting parties are not cognizant of the fact 
 that the goods are not in the vendor's possession"; 
 thereby recognizing that a wager must be a wager on 
 the part of both parties to the contract, or it will not 
 be a wager. In the case of Martin v. Gibbon (A), where 
 the validity of the sale of prospective dividends was 
 decided on, Bramwell, B., said : " Of course, a man 
 may sell a prospective dividend, and so fix his uncer- 
 tainty, and I do not think such transaction is within 
 the Wager Act." And Blackburn, J., said: "On 
 the other point, that a contract to sell a dividend not 
 declared was a wagering contract, I would say that 
 a contract to pay for all the oil in a whaling ship, 
 although you cannot tell how many whales the ship 
 will bring back, is not wagering." Again, no wager 
 is involved in a contract to sell next year's crop of the 
 apple trees growing in a specified orchard (*). An 
 effective instance of speculative transactions, the enter- 
 
 (0) Hibblewhite v. M 'Marine, 5 M. & W. 462 ; 3 Jur. 609. 
 (h) Martin v. Gibbon, 33 L. T N. S. 561 ; 24 W. B. 87. 
 (t) See post, p. 11.
 
 8 THE LAW OF GAMBLING. 
 
 ing into which would commonly be described as 
 "gambling on the Stock Exchange," is afforded by 
 Forget v. the case of Forget v. Ostigny (k] , which, on appeal from 
 a judgment of the Supreme Court of Canada, came 
 before the Privy Council. The appellant, Mr. Forget, 
 was a stockbroker at Montreal. During the years 
 1882, 1883, and 1884, the respondent instructed him 
 to carry out certain transactions in stocks and shares, 
 and accordingly the appellant effected certain purchases 
 and sales in Montreal. After giving credit to the re- 
 spondent for profit on one transaction, and including 
 interest and commission in respect of them all, there 
 was, on June 3rd, 1890, a considerable sum due and 
 payable to the appellant by the respondent upon the 
 balance of the account. The respondent had pleaded 
 that the transactions were not serious ones, but were 
 fictitious, and in the nature of gambling transactions 
 upon the rise and fall of stocks ; that they were made 
 upon margin, and without any intention of the real 
 purchase of the stocks ; and that they were therefore 
 illegal, and could not form the basis of an action. 
 Herschell, L. C., in delivering the judgment, stated 
 that it might well be that the appellant was aware that 
 in directing a purchase to be made the respondent a 
 clerk with small means did not intend to keep the 
 shares purchased, but to sell them when, as he antici- 
 pated, they should have risen in value ; that his object 
 was not investment, but speculation. To enter into 
 such contracts was sometimes spoken of as " gambling 
 on the Stock Exchange," but it certainly did not follow 
 that the transactions involved any gaming contract. 
 A contract could not properly be so described, because 
 
 (&) Forget v. Ostigny, (1895) Ap. Gas. 318; 72 L. T. 399; 43 
 W. B. 509.
 
 WAGERING CONTRACTS. 9 
 
 it was entered into in furtherance of a speculation. 
 To buy a commodity in the expectation that it will 
 rise in value, and with the intention of realizing a 
 profit by its re-sale, is a legitimate commercial trans- 
 action, and one of every-day occurrence. The legal 
 aspect of the case was the same whatever be the nature 
 of the commodity whether it be a cargo of wheat, or 
 the shares of a joint stock company. Such purchases 
 and sales did not become " gaming contracts " because 
 the person purchasing was not possessed of the money 
 required to pay for his purchases, but obtained the 
 requisite funds in a large measure by means of ad- 
 vances on the security of the stocks or goods he pur- 
 chased. 
 
 Having thus indicated the essentials of a wagering 
 contract, and having in the foregoing instances, by 
 reference to transactions involving future uncertainty, 
 and perhaps highly speculative characteristics, exhibited 
 the absence of those essentials, it now remains to con- 
 sider instances of wagering contracts. Such instances 
 may conveniently be grouped in connection with three 
 subject matters : first, sports and games ; secondly, 
 stocks and shares ; thirdly, insurance. 
 
 It is hardly necessary to exemplify wagering contracts I. Wagers in 
 in connection with horse races and such like sports, B] 
 and in the course of the book numerous examples will 
 occur. A simple instance would be : A. backs Tortoise 
 with B. for 100/. to win the Derby. B. lays 10 to 1 
 against him, that is 1,000 to 100. How the event will 
 turn out is uncertain until the race is over. Until then 
 A. may win 1,000/. or he may lose 100/. ; B. may win 
 100/. or he may lose 1,000/. : but each must be a winner 
 or a loser on the event. Under the wager neither has 
 any interest except in the money he may win or lose
 
 10 
 
 THE LAW OF GAMBLING. 
 
 II. Wagers 
 connected 
 with stocks 
 and shares. 
 
 by it (/) ; but it would be none the less a wager if B. 
 were the owner of the horse, and by laying against his 
 horse were merely hedging as against his expenses or 
 other wagers. Again, several persons may arrange a 
 horse race on the terms that 50/. shall be contributed 
 towards the stakes to be raced for by each person enter- 
 ing a competing horse. Each subscriber under such a 
 contract stands either to lose the portion of the stakes 
 subscribed by him or to win the contributions thereto 
 of the others, according to the happening of the un- 
 certain event (m). It is the same where A. and B. agree 
 to walk a match for 200/. a-side, and deposit the money 
 with a stakeholder (n) ; though, of course, the actual 
 deposit is not essential to the wager. Where, however, 
 the contribution to the stake is made by some person 
 other than a competitor, and such contributor makes a 
 gift, the result to him is the same however the event 
 may happen in either or any event he is the poorer in 
 so far as he has made the gift ; such contribution, then, 
 is clearly distinguishable from the payments of the 
 competitors (o). 
 
 "Wagering contracts on the future rise or fall in price 
 of stocks and shares are rarely in such simple form as 
 follows: A. backs the shares of a certain company 
 
 (I) Carlill v. The Carbolic SmoTce Ball Co., (1892) 2 Q. B. 
 484; 61 L. J. Q. B. 696; 56 J. P. 665; affirmed, (1893) 
 1 Q. B. 256 ; 62 L. J. Q. B. 257 ; 4 E. 176 ; 67 L. T. 837 ; 41 
 W. E. 210 ; 57 J. P. 325. 
 
 (TO) Bentinckv. Connop, D. & M. 538; 8 Jur. 336; 5 Q,. B. 
 693 ; 13 L. J. Q. B. 125 ; Varney v. Hickman, 5 D. & L. 364 ; 
 17 L. J. 0. P. 102; 5 0. B. 271 ; Martina. Hewson, 10 Exch. 
 737 ; 24 L. J. Ex. 174 ; 1 Jur. N. S. 214. 
 
 (n) Diggle v. Higgs, 2 Ex. Div. 422 ; 46 L. J. Ex. 721 ; 37 
 L. T. 27 ; 25 W. E. 777, 0. A., reversing, 25 W. E. 607. 
 
 (o) Applegarth v. Colley, 12 L. J. Ex. 34 ; 10 M. & W. 723 ; 
 7 Jur. 18.
 
 WAGERING CONTRACTS. 11 
 
 with B. for 1007. that the shares will rise in market 
 price 10s. per share within a fortnight, and B. lays the 
 odds of 10 to 1 that such a rise will not occur within 
 the time. More commonly the transaction would be 
 that A., being of the opinion that certain shares will 
 rise in price, and B. being of the contrary opinion, A. 
 promises B. that if the shares (say 1,000) shall have 
 fallen in price at the end of the fortnight, A. will pay 
 to B. the amount of the fall ; but if the contrary shall 
 happen, then B. promises that he will pay to A. the 
 amount of the riseQo). Such a contract is a simple 
 wagering contract both in form and substan'ce. Without 
 changing the substance of the transaction its form might 
 be varied as follows : A. agrees to purchase from B. 
 the 1,000 shares at the then current price on condition 
 that B. shall at the end of a fortnight repurchase from 
 A. the said shares at the then current price. No real 
 transfer of the property in the shares is contemplated 
 by either A. or B. ; the contracts for sale and purchase 
 are purely fictitious (<?) . Such a transaction is known 
 under the name of a time bargain or difference trans- 
 action, and is in its nature a purely wagering contract. 
 Of the two designations the term "difference trans- 
 action " is preferable to that of a " time bargain." For 
 a speculative sale, such as the next year's crop of the 
 apple trees growing in a specified orchard, is a time 
 bargain, as was pointed out by Bramwell, L.J., in 
 T/i acker v. Hardy (r), but does not, as heretofore seen, 
 
 (p) Seethe plea in Knight v. Cambers, 15 C. B. 562 ; 3 C. L. 
 E. 565; 24 L. J. C. P. 121 ; 1 Jur. N. S. 525. 
 
 (?) See the plea in Knight v. Fitch, 3 C. L. E. 567 ; 24 L. J. 
 C. P. 122 ; 1 Jur. N. S. 526; 15 C. B. 566. 
 
 (r} Thacker v. Hardy, 4 Q. B. D. 685 ; 48 L. J. Q. B. 289 ; 
 39 L. T. 595 ; 27 W. E. 158. See Benjamin on Sales, 4th ed., 
 p. 526.
 
 12 
 
 THE LAW OF GAMBLING. 
 
 Difference 
 transaction. 
 
 Mutuality. 
 
 amount to a wagering contract. Substituting for the 
 term "time bargain," the term "difference transaction," 
 the same is described by Lindley, J., in the case of 
 Thackcr v. Hardy , as follows : " But what are called 
 difference transactions are, in fact, the result of two 
 distinct and perfectly legal bargains, namely, first, a 
 bargain to buy and sell; and, secondly, a subsequent 
 bargain that the first shall not be carried out ; and it is 
 only when the first bargain is entered into upon the 
 understanding that it is not to be carried out, that a 
 difference bargain, in the sense of an unenforceable 
 bargain, is entered into ;" which is to the same effect as 
 the statement by Bramwell, L.J., in the Court of Appeal 
 in the same case: "But if the term difference transaction 
 is understood to mean an agreement to pay the differ- 
 ence between the price at the time when the bargain is 
 made and the price at the subsequent time, that agree- 
 ment is perhaps in the nature of a wager." The only 
 obligation that could arise under a " difference transac- 
 tion," if the same were enforceable, would be a payment 
 of money from one of the parties to the other. It has 
 been in connection with difference transactions that 
 mutuality has been said to be of the essence of a wager- 
 ing contract. Suppose that A. has certain shares for sale, 
 and that B. desiring to speculate in those shares, buys 
 them from A. simply with a view to realize a profit. 
 B. may subsequently re- sell those shares, at a profit or 
 loss, either to A. or to some third person. In the case 
 of a re-sale to a third person no question, it is clear, 
 can arise as to a wagering transaction ; and even though 
 the re-sale be to A., yet the fact that B. always in- 
 tended to deal with these shares in a speculative manner, 
 will not, in the absence of a similar intention on the 
 part of A. (whose original intention in substance and
 
 WAGERING CONTRACTS. 13 
 
 in fact was to part with his property once and for all, 
 and whose repurchase of the same was an entirely- 
 independent action), render the combination of the 
 two contracts impeachable as a difference or wagering 
 contract. 
 
 Difference transactions have been before the courts on Question for 
 many occasions, and questions of fact of much nicety e ]ury ' 
 arise in connection therewith. In the case of Orizewood 
 v. Blane (s), Jervis, L. C. J., left the questions of fact to 
 the jury, by directing them to find " what was the 
 plaintiff's intention and what was the defendant's in- 
 tention at the time of making the contracts, and whether 
 either party really meant to purchase or sell the shares 
 there in question ; " telling them that if neither party 
 intended to sell or purchase, the contract was, in his 
 opinion, a gambling transaction. On a motion for 
 a new trial, this direction was upheld. The evi- 
 dence disclosed the fact that the plaintiff was a stock 
 and share jobber in London ; that the defendant, 
 through his broker, contracted to sell and to repurchase 
 the shares mentioned in the declaration ; and that 
 there had been former dealings between the parties 
 of the same character, in which there had been no 
 passing of shares, but merely settlements of differences. 
 It was objected, on the part of the defendant, that 
 the contract was a wagering one. The jury, on the 
 facts, found for the defendant. If, however, they had 
 not taken into account the custom which had existed 
 between the parties for a long series of years, and had 
 not gone behind the form of the transaction, viz., a sale 
 for future delivery, followed subsequently by an alleged 
 separate contract for repurchase, their conclusion must 
 have been to the contrary. But in all these cases the 
 
 () arizewood v. Blane t 11 0. B. 526; 12 L. J. 0. P. 46.
 
 14 THE LAW OF GAMBLING. 
 
 jury must determine the substance of the transaction, 
 and the direction of Jervis, L. 0. J., correctly directs 
 their attention to essential questions. 
 
 In every case where there is an allegation that the 
 transactions were merely difference transactions, the 
 documentary evidence may, of course, be highly 
 important ; but it is not conclusive, for the docu- 
 Shaw v. The ments may be a mere blind. Lord Shand, in his 
 Railway judgment in the case of Shaio v. The Caledonian Rail- 
 Company. way Company (t), said : " That if it appears clearly 
 that the contracts and dealings between the parties 
 were for differences only, and were not intended in any 
 sense to be real transactions, then they must be regarded 
 as gambling transactions, and the Court will not give 
 Written docu- effect to them. And I may say further, that if it 
 fictitious. appears that any writings which passed between the 
 parties in the form of sale notes or otherwise were a 
 mere form, intended by both parties to give a colour to 
 the transactions, and to have no legal effect of any 
 kind, then I do not think that writings in such circum- 
 stances would take the case out of the rule I have men- 
 tioned. Transactions carried through by writings of 
 that kind would be colourable merely, the transactions 
 in themselves being truly for differences, and for 
 The contract nothing else (u). But, on the other hand, I think it 
 purchase may appears from the authorities, and on sound principle, 
 enforceaHe Uy tliat ^ contracts for the sale of stock, or shares, or 
 goods, as the case may be, are entered into so as to 
 create mutual obligations upon the parties on the one 
 hand to give, and on the other to take, delivery of 
 shares, or stock, or of goods, as the case may be : if 
 
 (t} Shaw v. The Caledonian Railway Company, 17 0. S. C. 466 
 (4th Series). 
 
 (u) Strachan v. Universal Stock Exchange, 43 W. E. 611 ; 
 (1895) 2 GU B. 329.
 
 . WAGERING CONTRACTS. 15 
 
 the obligation is such as can be enforced if either of 
 the parties think fit to do so, then I think we get out of 
 the region of arrangements for mere differences of the 
 nature of betting or gambling. If either one or both 
 parties may, as and when he thinks fit, demand or give 
 delivery of stock, and ask payment of the price under 
 the contract if that be so as to one of the parties then 
 I think the transaction has the mark or stamp of a real 
 transaction, and is inconsistent with the notion of a 
 transaction for mere differences. I have said that the 
 writings may not be conclusive upon the matter. For 
 example, if both parties on oath were to admit, and it 
 appeared quite clear upon the evidence, that the writings 
 were a mere blind, and that both parties understood 
 their contract, and were prepared to act upon their con- 
 tract as one for payment of differences only, then I 
 should be disposed to hold that that was a gambling 
 transaction. But unless the case could be brought up 
 to that, and if it did appear that the contracts- did create 
 obligations which could be enforced, then I think the 
 case would no longer be in the region of a contract for 
 the payment of mere differences, but would be out of 
 the rule as to gambling contracts." 
 
 Mr, Rayner, who had entered into the transactions The evidence 
 with the pursuer, stated that it never was intended and 
 was no part of his bargain with Shaw that stock should 
 be delivered, and that he had no contract save for the 
 payment of differences. He stated that he looked upon 
 the series of transactions in which he engaged from the 
 autumn of 1886 down to the end of June, 1887, as 
 gambling transactions. On the other side two witnesses 
 were called, who described the particulars of the trans- 
 actions and the general course of the dealings. In the 
 pursuer's office there was a telegraphic instrument, which
 
 16 THE LAW OF GAMBLING. 
 
 ran off a tape which supplied information as to the value 
 of stocks. With regard to the stocks named, it disclosed 
 two prices, viz., those at which the dealer on the Stock 
 Exchange was willing to buy or to sell, the lower being 
 that at which he was willing to buy, the higher at which 
 to sell. Shaw, although not a member of the Stock 
 Exchange, was, like the dealers on the Stock Exchange, 
 ready to buy at the lower, and to sell at the higher 
 price appearing on the tape. Mr. Eayner coming in, 
 judged whether he would purchase or sell certain stocks, 
 and he bought or sold accordingly. These were, so far 
 as mere externals were concerned, just ordinary pur- 
 chases and sales for investment. They were generally 
 purchases, but sometimes sales, and it appeared that, 
 unless the stock was carried over to another settling day 
 to be continued, there was either a re-sale or a re-purchase 
 of stock, which enabled Mr. Eayner to avoid making 
 delivery of the stock on the one hand, or taking it on 
 the other, and he merely met the result by paying or 
 receiving the differences. Mr. Eayner deposited cover, 
 the purpose of which was, on the one hand, to put Mr. 
 Shaw, in dealing with Mr. Eayner, in such a position 
 that if the stock which had been sold by Eayner rose 
 in price he was in a position to avoid losing through 
 Mr. Eayner's inability to fulfil his contract, because he 
 was entitled, and, indeed, bound under the contract, 
 immediately to provide stock to meet Mr. Eayner's 
 obligation. But while the cover operated in the way of 
 preventing a loss, either by the dealer in the shares, or, 
 beyond a certain limit, by Mr. Eayner, who had bought 
 them, on the other hand, if Mr. Eayner's transactions 
 were turning out favourably, then undoubtedly he was 
 entitled to hold by his sale or purchase, whichever it 
 might happen to be. The contracts in every case were
 
 WAGERING CONTRACTS. 
 
 written. There was a slip authorizing the transaction 
 to be entered into, and signed by Mr. Eayner ; and 
 there was, secondly, a bought or sold note, as the case 
 might be, which was issued by the pursuer and received 
 by Mr. Eayner, recording the transaction. 
 
 Lord Shand was of opinion that the transactions 
 severally did create obligations. He pointed to two 
 passages in the evidence : " Every transaction between 
 Eayner and the pursuer was accompanied by a contract 
 note, which bound pursuer either to sell or to buy a 
 certain stock, as the case might be ; " and again, " If 
 the stock goes against Eayner, to the extent of the cover 
 specified in the slips, pursuer is authorized by Eayner 
 to make an opposite transaction, so as to allow that 
 transaction to close as far as Eayner is concerned. That 
 does not at all affect the original transaction, namely, 
 that pursuer is obliged to deliver the stock if called 
 upon. So long as a man keeps his stock covered he can 
 always have delivery of it, and he can at any time 
 increase his cover so long as the stock has not been 
 actually closed, and when he takes it up he is given 
 credit for his cover. In a case where Eayner had sold 
 and pursuer bought, if Eayner had come upon the 
 settling day with the stock in his hand, pursuer would 
 have accepted it." Lord Shand concluded therefrom 
 that the transactions did create real obligations to give 
 and to take delivery respectively. 
 
 A very similar case to the last mentioned one is also 
 a Scotch case, Lowenfeld (Liquidator of the Universal 
 Stock Exchange Company, Limited) v. Howat (v). The 
 Lord President, in the course of his judgment, said : 
 " It is unnecessary to say that the fact that the trans- 
 
 (v) Lowenfeld (Liquidator of the Universal Stock Exchange 
 Company, Limited) v. Howat, 17 0. S. 0. 128 (4th Series). 
 o. c
 
 18 THE LAW OF GAMBLING. 
 
 actions are evidenced by writing would not at all pre- 
 clude the possibility of establishing that the writings 
 are merely simulate, and represent another and totally 
 different transaction from that which was really entered 
 into. Our law knows cases of that kind, where writings 
 are used merely as a cloak, and for collateral purposes, 
 and where the substance of the transaction is entirely 
 contrary to what is set out in the writings. But where 
 writings evidencing a contract are to be so dealt with, 
 and to be shown not to set forth the truth of the trans- 
 action, but to be merely a device, it is necessary that 
 some very definite and plain evidence should be brought 
 for that purpose." The bought and sold notes were 
 similar to those in the last case. Included in the printed 
 terms of business was the following : " Every purchase 
 or sale of stock or shares contracted by the company is 
 a band fide transaction for delivery, the company always 
 being prepared to deliver or take up, on the settling day 
 specified in the contract, any and every stock or share 
 which it may have bought or sold. Clients may, if it 
 suits their convenience, repurchase or re-sell to the com- 
 pany, or any other stock dealers, any stocks or shares 
 which they may have previously bought or sold. The 
 company shall, however, have no power to compel them 
 to do so, the company's intention on entering into any 
 and every transaction being to deliver or take up the 
 stocks bought or sold by them." The defenders' evi- 
 dence that there had been an original agreement that 
 the dealings were to be for differences only did not 
 suffice, in the presence of the contrary testimony, to 
 upset the documents (#). 
 
 (x) See also Universal Stock Exchange (Limited] v. Stevens, 40 
 W. E. 494 ; 66 L. T. 612 ; Shaw v. Balky, 24th Jan., Times 
 Newspaper, 1893.
 
 WAGERING CONTRACTS. 19 
 
 In the case of In re Chappie, Ex parte Cochrane and 
 Sons (y), on appeal from the Barnstaple County Court, 
 Yaughan Williams and Wright, JJ., admitted that if 
 one party had a right to call for delivery, the contract 
 would be within the principle which Lord Shand enun- 
 ciated, and the contract would not be a wagering one. 
 But the Court held in that case that the contract was a 
 composite one, and that its terms were to be gathered, 
 not only from the bought and sold notes, but also from 
 the circular issued by Messrs. Cochrane and Sons. 
 Having regard to the whole of the contract, it was 
 decided that neither party had the right to demand 
 delivery, and that the contract was a mere wagering 
 one. 
 
 The same allegation has been raised where the trans- Transactions 
 
 ^ on the Stock 
 
 actions have been conducted on the Stock Exchange. Exchange. 
 But there the rules of the Stock Exchange, as will -be 
 seen subsequently in Chapter X., are strongly against 
 the contention that a transaction conducted on the Ex- 
 change is a fictitious and not a real sale or purchase. 
 It may be noticed that in Grizetcood v. Blane (z) the 
 jury did find, as a fact, that the transactions were mere 
 difference transactions. A new trial, however, may be New trial, 
 obtained on the ground that the verdict of the jury was 
 unsatisfactory. In the case of Cooper v. Neil (a), the 
 jury had found that certain contracts entered into by a 
 broker on behalf of the defendant with a jobber were 
 wagering contracts ; thereupon the Court of Appeal 
 directed a new trial. 
 
 (y) In re Chappie, Ex parte Cochrane and Sons, 9th and 10th 
 Aug. 1895. Leave to appeal was given. 
 
 (z) Qrizewood v. Blane, 11 0. B. 526; 12 L. J. C. P. 46. 
 (a) Cooper v. Neil, W. N. (1878) 128. 
 c2
 
 20 THE LAW OF GAMBLING. 
 
 io v. In the case of Reggio v. Stevens 8f Co.(b), the de- 
 
 fendants, the outside brokers, had set up the plea of 
 wagering contracts. The jury found for the plaintiff. 
 The defendants sought to set aside the verdict. The 
 Court applied the crucial test : Was there any evidence 
 on which the jury might have found, as a fact, that 
 either party had intended that the shares should be 
 taken up ? The plaintiff stated that he had had no 
 intention to take up the stock, and the defendants were 
 positive to the same effect. The Court does not appear 
 to have considered the question whether the plaintiff 
 and the defendants, or either of them, had a right to 
 call for delivery ; whether they intended to exercise that 
 right or not being a second question. Evidence that 
 the parties did not intend to exercise the right would 
 tend to establish the conclusion that such right was 
 merely formal, and had not an existence in substance 
 and in fact. 
 
 Substance not It is not only with regard to alleged difference trans- 
 cases. .actions that it has been held that the substance of the 
 
 Erogden v. transaction must prevail over the form. In Brogden v. 
 Marriott (c), the form of the transaction was an out and 
 out sale of a horse, but the substance was held to be a 
 wager on a trotting match against time. In this case 
 the defendant agreed to sell his horse Partington to the 
 plaintiff for the sum of 200/., provided that he trotted 
 eighteen miles within one hour ; but if the horse failed, 
 then he was thereby sold to plaintiff for the sum of one 
 shilling. The plaintiff obtained a verdict ; but the 
 judgment was subsequently arrested. Tindal, C. J., 
 said it would depend on the event of a trotting match 
 
 (&) Reggio v. Stevens & Co., 4 T. L. E. 326. 
 (c) Brogden v. Marriott, 3 Bing. N. C. 88; 2 Scott, 712; 2 
 Hodges, 136.
 
 WAGERING CONTRACTS. 21 
 
 against time whether the plaintiff should gain a horse 
 for one shilling, which, according to his own agreement, 
 was worth 200/. if he performed the task, and, on the 
 other hand, the defendant's property was staked on 
 the bargain. Park and Vaughan, JJ., concurred, and 
 Graselee, J., said it was a question for the jury. Here 
 there is an uncertain event, and of a nature uncontrollable 
 by the parties : in the one event, i. e., of the horse fail- 
 ing, the plaintiff stood to win the difference between 
 the fair value of the horse and one shilling, and the de- 
 fendant stood to lose that amount ; but the difficulty in 
 the case, it is submitted, arises from the fact that it is 
 not stated that 200/. was beyond the value of a horse of 
 such trotting power, so that it is not clear that in the 
 other event, i. e., of the horse succeeding, the plaintiff 
 would have lost or the defendant won. This case is in 
 clear contrast to Crofton v. Colgan (d), where the plaintiff 
 sold to the defendant a racing mare for a fixed sum, 
 and also half of whatever she should win within a fixed 
 time. The converse proposition that though the trans- 
 action was in form a wager, yet in substance it was a 
 sale, was raised in the case of JRourke v. Short (e). In 
 that case the plaintiff and the defendant held contrary 
 opinions as to the price per cwt. at which the plaintiff 
 had on a previous occasion sold rags to the defendant. 
 The plaintiff asserted that the price had been 5s. 9d. 
 per 112 Ibs., and the defendant asserted that the price 
 had been 6s. They agreed that if the plaintiff's asser- 
 tion should prove correct, then the defendant should 
 pay to the plaintiff the price of one gallon of best 
 brandy, and should also receive from the plaintiff 
 
 (d) Crofton v. Colgan, lO.Ir. E. C. L. 133. 
 
 (e) Rourke v. Short, 5 E. & B. 904 ; 25 L. J. Q. B. 196 ; 2 
 Jur. N. S. 352.
 
 ** THE LAW OF GAMBLING. 
 
 similar rags at the price of 6s. for every 112 Ibs., such 
 price being more than the real value ; and that, on 
 the contrary, if the defendant's assertion should prove 
 correct, then the plaintiff should pay to the defendant 
 the price of one gallon of the best brandy, and should 
 also sell and deliver to the defendant the goods at 
 the price of 3s. per 112 Ibs., being less than the real 
 value of the rags. Campbell, C. J., said that on the 
 terms employed, and not employed merely colourably, 
 the previous price was the point on which the wager 
 was to turn, and the stake was the difference in price 
 now to be paid. Coleridge, J., held that it was merely 
 a stipulation for the sale and purchase of goods at a 
 price to be regulated by ascertaining a past event or a 
 wager on that event. Hence the motion for a new 
 trial, on the ground that the jury, who had found that 
 the transaction was a wagering one, had been mis- 
 directed, was dismissed. 
 
 III. Insur- Insurance at one period was made the instrument of 
 ance wagers. . * 
 
 wagering and gambling to an appalling extent. Other 
 
 men's lives and property were insured by strangers 
 to enormous amounts, and insurance, thus abused, 
 was in danger of becoming, and in fact did develop 
 into, a public evil. But the history of that phase and 
 the law of insurance to-day are outside the scope of 
 this book. At the same time, however, it is pertinent 
 to illustrate the subject of wagering contracts and their 
 essentials by reference to the topic. 
 Marine and Marine and fire insurances are contracts of indemnity. 
 
 contracts of The owner of the ship or of the property is liable to 
 lemmty. 
 
 e gea or y re ^ ag 
 
 be. He indemnifies himself against the happening of 
 that future uncertain event by insurance, and of such 
 contract of indemnity the main principle of law is that
 
 WAGERING CONTRACTS. 23 
 
 thereunder he can only be compensated to the extent 
 of his actual loss. It will therefore be seen that the 
 assured does not gain in the same sense as that in 
 which the winner of a wagering contract does. If 
 there be no interest in respect of which an actual 
 loss could be sustained, then a contract to pay a sum 
 certain of money on the happening of the uncertain 
 event in consideration of the payment of premiums is a 
 simple wager ; for the parties thereto stand respectively 
 either to win or to lose according to the happening or 
 non-happening of the event. The law first took cogni- 
 zance of such wagering contracts after the Revolution ; 
 and they were subsequently prohibited by the statute 
 19 Geo. II. c. 37. An instance of such a wagering 
 policy is found in the case of Kent v. Bird (/), where the 
 contract between the plaintiff and defendant was that 
 the plaintiff gave so much to the defendant in considera- 
 tion that the ship should save her passage to China ; 
 and if not, then upon her returning to England the 
 plaintiff was to receive a much larger sum from the 
 defendant. Lord Mansfield said : " If the first of 
 these events happened, the defendant won : but he 
 could not lose unless both happened. Is not this 
 gaming ? Is not this wagering ? If there is no in- 
 terest, it is gaming and wagering." In the case of 
 Lowry v. Bourdieu (#), the plaintiff had advanced 
 26,000/., on the security of a common bond, to the 
 captain of a ship. Whilst the ship was on its voyage 
 the plaintiff obtained a policy of insurance under- 
 written by the defendant. The amount insured for 
 was 26,000/. Under the policy it was provided that 
 in case of loss no other proof of interest was to be 
 
 (/) Kent v. Bird, Cowper, 583. 
 
 (</) Lowry v. Bourdieu, 2 Doug. 468.
 
 24 THE LAW OF GAMBLING. 
 
 required than the exhibition of the bond, warranted 
 free from average, and without benefit of salvage 
 to the insurer. Lord Mansfield said : " There are 
 two sorts of policies of insurance : mercantile and 
 gaming. The first sort are contracts of indemnity and 
 indemnity only. The second sort may be the same in 
 form, but in them there is no contract of indemnity, 
 because there is no interest on which a loss can accrue. 
 They are mere games of hazard, like the casts of a 
 dice. In the present case the nature of the insurance 
 is known to both parties. The plaintiff says : * I mean 
 to game, but I give my reasons for it : Captain L. owes 
 me a sum of money, and I want to be secure in case 
 he should not be in a position to pay me.' It was a 
 hedge. But he had no interest, for if the ship had 
 been lost, and the insurer had paid, still the plaintiff 
 would have been entitled to recover the amount of the 
 bond from L. This, then, is a gaming policy." 
 Life assurance Life assurance differs from marine and fire insurance 
 in so far as it is not essentially a contract of indemnity. 
 The decision of Lord Ellenborough, holding that life 
 assurance, like every other insurance valid in law, was 
 essentially a contract of indemnity (ti) , was unanimously 
 overruled in the case of Dally v. The India and London 
 Life Assurance Company (i), where Parke, B., said: 
 " The contract commonly called life assurance is, when 
 properly considered, a mere contract to pay a certain 
 sum of money on the death of a person in consideration 
 of the due payment of a certain annuity for his life, 
 the amount of the annuity being calculated in the first 
 instance according to the probable duration of the life, 
 
 (A) Godsall v. Boldero, 9 East, 72. 
 
 (i) Dally v. The India and London Life Assurance Company, 
 15 0. B. 365 ; 3 C. L. E. 361 ; 24 L. J. 0. P. 2 ; 18 Jur. 1024.
 
 WAGERING CONTRACTS. 25 
 
 and when once fixed it is constant and invariable." 
 The following succinct definition was given by Jessel, 
 M. B>., in Fryer v. Norland (j): " It is a purchase of 
 a reversionary sum in consideration of a present pay- 
 ment of money, or, as is generally the case, on the 
 payment of an annuity during the life of the person 
 insuring." These two definitions suggest that life 
 assurance is of the nature of a speculative sale ; the 
 annual payments (an uncertain number) correspond 
 to the uncertain crop of apples, and the gum to be 
 paid by the insurer to the price of the crop. But the 
 analogy would be closer if the insurer paid at once 
 the agreed price in consideration of the subsequent 
 payment by the assured during his life of an agreed 
 annuity. As a matter of fact, the policy of life assur- 
 ance does not fix an uncertainty as is done in the in- 
 stance of a speculative sale such as is mentioned by 
 Blackburn, J., in Martin v. Gibbon (k) ; the ultimate 
 payment of the reversionary sum is conditional on the 
 annual payments by the insured. When a person 
 insures his own life, in substance he and the insurer 
 enter into a series of wagering contracts. In each year 
 the insured lays his annual payment against the amount 
 assured, minus the premium of the year, that he will 
 die within the year, and the insurer backs that he will 
 not so die by the amount assured, minus the premium 
 of the year, to the annual premium. Sometimes the 
 uncertain event is not the date of a man's death, but 
 the contingency of one man surviving another, c. (/., 
 of A. surviving B. If in such an instance A. dies before 
 B., the insurer will gain the premiums, plus the acore- 
 
 (j) Fryer v. Morland, 3 Ch. Div. 675 ; 45 L. J. Ch. 817 ; 
 35 L. T. 458 ; 25 W. E. 21. 
 (&) Martin v. Gibbon, 33 L. T. N. S. 561 ; 24 W. E. 87.
 
 26 THE LAW OF GAMBLING. 
 
 tions of interest, and the insured will lose the same ; or 
 if, on the other hand, A. survive B., then, if at the 
 time of final settlement the said premiums with their 
 interest amount to less than the sum assured, the in- 
 surer will lose the difference, and the insured will win 
 the same ; whilst, if at final settlement the annual 
 premiums and the interest exceed the amount assured, 
 the insurer will win, and the insured lose. Life assur- 
 ance, then, is a wagering contract (/), or, more accu- 
 rately, a series of wagering contracts. Since the 
 (rambling Act (14 Geo. III. c. 48), every insurance 
 on lives or other events, unsupported by an interest, 
 is by way of gaming and wagering, and as such is null 
 and void. Where there is an interest, the contract is 
 valid within the meaning of the Act, even though it 
 be, as shown above, a wagering contract inherently. 
 The third section of the Act limits the amount recover- 
 able to the value of the interest of the insured in such 
 life or lives or other event or events. A man, however, 
 may insure his own life for any sum, and the same will 
 be recoverable, because he thereby protects his estate 
 from the loss of his future gains or savings uncertain 
 in amount which might result from his death. 
 
 Conclusion. The reader will appreciate the dictum of Mr. Justice 
 Hawkins, that it is not easy to define, with precision, 
 what amounts to a wagering contract, nor the narrow 
 line which separates a wagering from an ordinary 
 contract. The two essentials are the uncertain event, 
 and the certainty for each party of loss or gain, which 
 chance of gain or loss must be respectively contem- 
 plated and aimed at by each party to the contract. 
 If, in substance, such elements are present, then, in fact, 
 the contract is a wagering one. 
 
 (Z) See Bunyon on Life Assurance.
 
 CHAPTER H. 
 
 WAGERS, GAMES AND GAMING AT COMMON LAW. 
 
 AT common law, a wagering agreement was an "Wagers valid 
 enforceable contract. The existence of this general 1^ 
 rule is emphasized by the exceptions which were made 
 thereto on the grounds of public policy, and by the 
 various statutes which were passed for the purpose of 
 limiting the legality of wagers. The question which Form of 
 came before the Courts for decision in early cases was a ' 
 as to the proper frame and form of an action for the 
 enforcement of a wager, as is exemplified in the follow- 
 ing cases : One Bovey agreed with one Castleman 
 that if the Duke of Savoy made an incursion into the 
 Dauphine within such a time, then Bovey should give 
 Castleman 1001. ; but if the duke did not, then Castle- 
 man was to pay Bovey 100/. ; in the result Bovey 
 became entitled to the 100/. Bovey thereupon sued 
 Castleman, but since he framed his action as follows, 
 i.e., that in consideration that the plaintiff had won 
 1001. of the defendant on a wager, the defendant 
 had promised to pay the 100/., it was held that 
 the action would not lie. A wager would not sup- Special ^ 
 port an indebitatus assumpsit ; the only assumpsit that 
 would lie was a special one based upon the mutual 
 promises to pay, so that Bovey might have claimed the 
 1001. from Castleman, pursuant to the latter's promise, 
 in consideration of Bovey 's promise to Castleman (a). 
 
 (a) Bovey v. Castleman, 1 Ld. Raymond, 69. See also Andreiva 
 V. Hearne, 1 Lev. 33 ; Walker v. Walker, 5 Mod. 13.
 
 28 THE LAW OF GAMBLING. 
 
 The action when thus framed clearly shows the con- 
 sideration moving from the one party to the other. 
 
 At a later date, when the Courts were sifting out 
 wagering contracts which were not legal from those 
 that were, many instances occur in which wagering 
 contracts were successfully sued on. In the leading 
 case of Da Costa v. Jones (b), Lord Mansfield laid 
 down the principle, "Indifferent wagers upon indif- 
 ferent matters without interest to either of the parties 
 are certainly allowed by the law of this country." 
 A year previously, in the case of Jones v. Randall (c), 
 where the wager was for 50/. that a decree of the 
 Court of Chancery would be reversed on appeal to the 
 House of Lords, the defendant admitted that the con- 
 tract was against no positive law, and that no authority 
 could be cited to show that it was illegal. The plaintiff 
 in the last case was interested in the result of the 
 appeal, and the wager being without fraud, upon equal 
 terms, and on a very nice question of law, the plaintiff 
 was held entitled to recover the money he had won. 
 As an instance of a wager in which neither party had 
 an interest, that in the case of Good v. Elliott (d) may 
 be cited, and it will also serve to illustrate the frivolous 
 nature of the cases brought before the Courts: the de- 
 fendant wagered the plaintiff the sum of 5/. that Susan 
 Tye had, before the time of the conversation, bought 
 a certain waggon. The action was maintained. In the 
 case of Hussey v. Crickitt (e), the plaintiff sued the de- 
 fendant on a wager of a rump and a dozen (that is, a 
 good dinner and plenty of wine for all present), that 
 
 (&) Da Costa v. Jones, 2 Cowp. 729. 
 
 (c) Jones v. Randall, 1 Cowp. 37; LofEt, 383, 428. 
 
 (d) Good v. Elliott, 3 T. E. 693. 
 
 (e) Hussey v. Crickitt, 3 Camp. 168.
 
 WAGERS, GAMES AND GAMING AT COMMON LAW. 29 
 
 the defendant was older than the plaintiff. The defen- 
 dant was found to be six years older ; hut although he 
 had notice of the settlement of the dispute and of the 
 dinner he did not come ; thereupon the plaintiff paid for 
 the dinner, and sued the defendant for 18/. so expended. 
 The plaintiff showed that the wager was not void for 
 uncertainty, and supported its morality by a passage 
 from the Digest (/). Thereupon he succeeded. In the 
 case of The Earl of March v. Pigot (g), a curious point 
 arose. Two gentlemen at Newmarket agreed to run 
 their fathers each against the other ; one retired, and 
 the plaintiff took up the wager, which then stood that 
 the defendant should pay the plaintiff 500 guineas if 
 the defendant's father died before Sir William Cod- 
 rington, but if the defendant's father survived Sir 
 William Codrington, then plaintiff was to pay the de- 
 fendant 1,600 guineas. As a fact, though unknown to 
 the parties, the defendant's father was at the time of 
 the wager actually dead. The plaintiff recovered the 
 amount of the wager 500 guineas. 
 
 The judges from time to time complained strongly Complaints of 
 of the extent to which wagers were brought before the 
 courts, as Lord Mansfield did in the case of Da Costa 
 v. Jones (h). Again, in Husscy v. Crickitt(i), he said, 
 " While we were occupied with these idle disputes parties 
 having large debts due to them and questions of great 
 magnitude to try were grievously delayed," and Cham- 
 bers, J., in the same case, suggests that it would have 
 been better if courts of justice had refused altogether 
 
 (/) Quod in convivio viscendi causa ponitur, in earn rem 
 familiso ludere permittitur : Dig. lib. xi. t. v. 
 (g} March (Earl of} v. Pigot, 5 Burr. 2802. 
 (h) Da Costa v. Jones, 2 Cowp. 729. 
 (0 Hussey v. Crickitt, 3 Camp. 168.
 
 30 
 
 THE LAW OF GAMBLING. 
 
 Exception to 
 general 
 validity at 
 common law. 
 
 Tending to a 
 breach of the 
 peace. 
 
 to entertain actions upon bets. In Emm v. Jones (k), 
 it was submitted in argument that there was a class of 
 wagers which a judge might refuse to try on the ground 
 of their being unlawful and improper, and distinguish- 
 able from the class, hereafter to be mentioned, of wagers 
 illegal because contrary to public policy. The sub- 
 mission was based on Thornton v. Thackray (I). But 
 the contention was disapproved of, and it was stated 
 that the judge was bound to try them at some time, 
 though he might postpone them until cases of more 
 importance had been tried. 
 
 The general validity under the common law of wager- 
 ing contracts was limited by a concurrent exception of 
 wide and somewhat indeterminate extent. The basis 
 of that exception is exemplified in Lord Mansfield's 
 judgment in the above cited case of Da Costa v. Jones (m). 
 The wager was on the sex of Mons. Le Chevallier D'Eon, 
 whereunder the plaintiff was to pay twenty-five guineas 
 down to the defendant, and the defendant was to pay 
 the plaintiff 300/., if at any time D'Eon should prove 
 to be a female. Lord Mansfield having stated the 
 general rule, continued : " There must be a variety of 
 instances where the voluntary act of two indifferent 
 parties by laying a wager shall not be permitted to form 
 a ground of action in a court of justice. Suppose a 
 wager between two people that one of them or that a 
 third person shall do a criminal act. To go from 
 stronger cases to those that are less strong, ' I lay you 
 a wager you do not beat such a person, you lay that 
 you will.' Such a wager would be void, because it is 
 an incitement to a breach of the peace. Suppose the 
 
 (k) Evans v. Jones, 5 M. & W. 77 ; 2 H. & H. 67 ; 3 Jur. 318. 
 (Z) Thornton y. Thackray, 2 Y. & J. 156. 
 (m) Da Costa v. Jones, 2 Ccwp. 729.
 
 WAGERS, GAMES AND GAMING AT COMMON LAW. 3l 
 
 subject-matter were a violation of chastity or an im- Immorality, 
 moral action, ' I lay I seduce such a woman.' Would 
 a court of justice entertain an action upon such a 
 wager ? Most clearly not, because it is an incitement 
 to immorality. Suppose a wager upon a subject contra 
 bonos mores, as in the case of Sir Charles Sedley : 
 would a court try a wager that incites to such in- 
 decency ? It may be said there are no adjudged cases ; 
 but you offend, you misbehave by laying such a wager, 
 To come nearer the point, suppose a wager that affects Interests of 
 the interest or the feelings of a third person, which is 
 one of the grounds upon which a motion for a new 
 trial in this case has been argued. For instance, that 
 such a woman has committed adultery ; would a court 
 of justice try the adultery in an action upon such a 
 wager? Or a wager that an unmarried woman has 
 had a bastard, would you try that ? Would it be en- 
 dured ? Most unquestionably it would not, because it 
 is not only an injury to a third person, but it disturbs 
 the peace of society, and in either of these two last cases, 
 the party to be affected by it would have a right to say, 
 How dare you bring my name in question ? If a hus- 
 band complains of adultery he shall be allowed to try it, 
 because he is a party injured. So if it be necessary to 
 justice to try whether such an one is a bastard, it shall 
 be tried. But third persons, merely for the purpose of 
 laying a wager, shall not then wantonly expose others 
 to ridicule and libel them under the form of an action." 
 The wager for the last-mentioned reason was, therefore, 
 held to be illegal, and the action was accordingly dis- 
 missed. A wager which is injurious to a third person 
 will not be enforced, even though the third person 
 courts the inquiry. In Ditchburn v. Goldsmith (), the 
 (n) Dilchburn v. Goldsmith, 4 Camp. 152.
 
 32 THE LAW OF GAMBLING. 
 
 Court held that no action could be maintained upon 
 the wager whether or not an unmarried woman has 
 had a child, even though the woman desires inquiry, and 
 asserts that she is a witch, and that the conception was 
 immaculate. 
 
 The contract in Eltham v. Kingsman (o) affords another 
 instance of an illegal wager, because it tended to subject 
 a third person to inconvenience. The plaintiff and 
 defendant wagered their respective watches that a cer- 
 tain Colonel Longford would go in the plaintiff's Fly 
 by Night, and no other, that evening to the assembly 
 rooms. The importunities of the proprietors of the 
 vehicles would be inconvenient to the third party. 
 Illegal on Public policy was frequently a ground for holding 
 
 grounds of .. . ... 
 
 public policy, wagers to be illegal. An examination of such cases 
 exemplifies that as a basis for the decisions public policy 
 was elastic and uncertain. It was held in Hartley v. 
 Rice (p), that a wager of fifty guineas that the plaintiff 
 would not marry within six years was void, for although 
 the restraint was partial, yet the immediate tendency of 
 such a contract, as far as it went, was to discourage 
 marriage, and no circumstances appeared to show that 
 in the particular instance the restraint was prudent and 
 proper. A bet of 51. whether the Canterbury collection 
 on the hop duties for 1786 would be greater than in 
 the preceding year was held illegal, on the ground, as 
 stated by one of the learned judges, that Parliament is 
 the proper place in which these questions are to be 
 discussed, and that the same would be improper subject- 
 matter for discussion elsewhere (q) . A wager was held 
 to be void whereunder A. was to pay B. 100 guineas if 
 
 (o) Eltham v. Kingsman, 1 B. & Aid. 683. 
 (p) Hartley v. Bice, 10 East, 22. 
 (3) Atherfold v. Beard, 2 T. R. 610.
 
 WAGEKS, GAMES AND GAMING AT COMMON LAW. 33 
 
 Napoleon Bonaparte died on or before the 31st May, 
 1802, and if he did not, then B. was to pay A. one 
 guinea for every day he lived. B. paid the money for 
 some considerable time, but at the date of the action 
 brought by A. was in arrear 2,296/. Lord EUenborough, 
 C. J., based his decision on the ground that the tendency 
 of such a wager was towards public mischief and inconve- 
 nience (r) . Again, a wager on the result of a criminal trial 
 was held illegal as tending to interfere with the course of 
 justice (s). This last case is distinguishable from Jones 
 v. Randall, where it was pointed out that the bet was 
 not with anyone who could in any way influence the 
 decision of the House of Lords : seem, if a bet were made 
 with an influential member of the Archbishop's Court 
 that " I do not get that bishopric that is now vacant," 
 such a bet would be corrupt. Again, a wager which might 
 tend to impair the fair exercise of the privileges of an 
 elector, and be made an instrument of corruption, was 
 illegal (t). In another case, the Court declined to solve 
 a legal conundrum as to whether a person could be law- 
 fully held to bail on a "special original" for a debt 
 under 40/., on the ground that the Court was not bound 
 to answer whatever impertinent questions persons might 
 think proper to ask them in the form of a wager (u). 
 Yet Lord Holt, on another occasion, with the assistance 
 of the groom porter, decided whether a person playing 
 at backgammon, who had stirred one of his men without 
 
 (r) Gilbert v. Sykes, 16 East, 150 ; cf. Andrews v. Ilearne, 1 
 Lev. 33, where in a similar wager the objection was not 
 taken. 
 
 (a) Evans v. Jones, 5 M. & W. 77 ; 2 H. & H. 67 ; 3 Jur. 318. 
 
 (<) Allen v. Hearn, 1 T. E. 56. 
 
 (u) Henkin v. Ouerss, 12 East, 247. 
 
 G. D
 
 34 
 
 THE LAW OF GAMBLING. 
 
 Wagers for 
 
 excessive 
 
 amounts. 
 
 Games. 
 
 moving it from the point, was bound to play it (x) . The 
 Court held a wager by an attorney's clerk that he would 
 not pass his examination to be unenforceable, on the 
 ground that he could determine the event in his own 
 favour (y) ; but it may be suggested that it was void on 
 the ground of public policy, as tending to hinder the 
 promotion of legal knowledge. 
 
 Amongst the cases decided according to the common 
 law, there does not appear to be any in which wagers 
 were held to be contrary to public policy merely because 
 the amounts involved were excessive. There is an 
 authority of Lord Chief Justice Hale's time in which 
 an action on a wager on a foot-race for an excessive 
 amount was not dismissed as unenforceable, but pro- 
 tection was given to the defendant by allowing liberty 
 from time to time to imparl. The defendant was pro- 
 tected because those great wagers proceeded from 
 avarice, and were founded in corruption (s). 
 
 At common law the playing at any game was lawful 
 and permissible. In the case of Bell v. The Bishop of 
 Norwich (a), the defendant had refused a clerk because 
 he was a haunter of taverns and unlawful games, but a 
 plea stating this ground of refusal was held bad, " be- 
 cause the faults alleged were not evill in their own 
 nature" (b). In the case of Monopolies (c), where the 
 case in Dyer is cited, it is stated " And the playing at 
 
 (x) Pope y.St.Leger, 1 Salk. 344. Of. Brown v. Leeson, 2 H. Bl. 43. 
 
 (y] Fisher v. Waltham, 4 Q. B. 889 ; D. & M. 142 ; 12 L. J. 
 Q. B. 330 ; 7 Jur. 625. 
 
 (z) Eeg. Lib. 1687, A., fol. 219, a case between Sir Charles 
 Bishop and Sir John Staples. 
 
 (a) Sell v. Bishop of Norwich, Dyer, Mich. Term, 8 & 9 Eliz., 
 fol. 254 b. 
 
 (6) Goldsb. p. 35; Mich. Term XXIX. Anno Eliz., case 10. 
 
 (c) Monopolies, 11 Co. Rep. 87 b.
 
 WAGERS, GAMES AND GAMING AT COMMON LAW. 
 
 35 
 
 dice and cards is not prohibited by the common law 
 (unless a man is deceived by false dice and cards, for 
 then he who is deceived shall have an action on his case 
 for the deceit) (c?), and therefore playing at cards, dice, 
 &c., is not malum in se" 
 
 As any game was permissible at common law, it 
 would follow that money won at play could be recovered 
 by action. Thus, in Sherborn v. Colebach(e), it was 
 allowed that on a properly constituted action the sum 
 of 20/. lost by the defendant to the plaintiff at a cer- 
 tain play called hazard, could be recovered. As in the 
 case of actions on wagers, so in actions for money won 
 at games, the action had to be framed as a special 
 assumpsit, and not as an indebitatus assumpsit (/) ; as 
 Holt, 0. J. said, in the case of Smith v. Aiery (g), " No 
 way in the world to recover money won at play but by 
 special assumpsit." 
 
 The validity of games played for excessive stakes, and Gaming for 
 the enforcement of obligations arising thereunder, is a stakes. 
 question of some difficulty. There does not appear to 
 be any old authority to show that the mere excess of 
 the stakes would make the play illegal : though doubt- 
 less the Court would view the matter with abhorrence. 
 The case of Bishop v. Staples (h], exemplifies the atti- 
 tude of the Court towards an excessive wager. In 
 Eggkton v. Lenin (i), it was stated by the judges that 
 
 (d) The case of Holyday v. Oxenbridge, Or. Chas. 234, cited in 
 the marginal note (f), is an authority to show that a private 
 person may arrest a common cheating gambler ("molliter manus 
 imposuit"). 
 
 (e) Sherborn v. Colebach, 2 Vent. 175. 
 
 (/) Anonymous, Salk. 100; Whitgravey, Chancey, Lut. 100. 
 (g) Smith v. Aiery, 6 Mod. 128. 
 (h) Bishop v. Staples, Eeg. Lib. 1687, A., fol. 219. 
 (t) Eggleton v. Lewin, 3 Lev. 118. 
 r>2
 
 36- THE LAW OF GAMBLING. 
 
 they would be cautious of giving encouragement to 
 actions for money won at play " more than needs 
 must." In an instance where an excessive amount had 
 been won fairly at play, it may be surmised that the 
 Court would have given discouragement by granting the 
 defendant liberty from time to time to imparl. But the 
 Court of equity declared that if such discouragement 
 was given at common law, it ought much more to be 
 done in a Court of equity. The question was raised 
 in the case of Firebrass v. Brett (k). The defendant 
 and Sir William Russell dined with the plaintiff. After 
 dinner the defendant fell into play at hazard with the 
 plaintiff, and won of him about 900/. ; the plaintiff 
 being somewhat drunk, fetched a further sum of 1,500/., 
 and the defendant won that also. As the defendant 
 was leaving, the plaintiff and his servants seized the 
 1,5 001., but the defendant carried away the 900 1. The 
 defendant commenced an action at law for trespass 
 against the plaintiff : the plaintiff caused the defendant 
 to be tried on an information for cheating with 
 loaded dice, but on that charge the defendant was 
 acquitted. The plaintiff by his bill asked to be re- 
 lieved in respect of the 1,500/., and likewise against the 
 action for trespass. On a motion, the Chancellor granted 
 an interim injunction until the trial of the action (/). 
 At the trial the Chancellor stated that he thought it a 
 very exorbitant sum to be lost at play at one sitting 
 between persons of their rank, and that he would dis- 
 courage as much as in him lay such excessive gaming, and 
 he cited with approval the case of Staples v. Bishop (in). 
 
 (k) Firebrass v. Brett, 2 Vern. 70. 
 
 (I) Firebrass v. Brett, 1 Vern. 489. 
 
 (m) Staples v. Bishop, Keg. Lib. 1687 A., fol. 219.
 
 WAGEKS, GAMES AND GAMING AT COMMON LAW. 
 
 This strong expression of opinion led the defendant to 
 accept a compromise, and an order was taken by con- 
 sent, whereunder the parties respectively retained the 
 1,500/. and the 900 If a game played for an exces- 
 sive stake had been illegal at law or at equity, one 
 would have expected a statement to that effect. In the 
 case of Woodrqffe v. Farnham () , the plaintiff and defen- 
 dant, apprentices within the City of London, played 
 whist, with the result that, at two sittings, the defendant 
 won of the plaintiff about 1001. For securing 50/., part 
 of this sum, the plaintiff gave the defendant a bond, 
 against which the plaintiff in his suit sought to be 
 relieved. The Court granted the relief, and affirmed 
 that gaming in all instances ought to be discouraged, 
 and especially amongst apprentices, as it put the master 
 in danger to have his cash wasted, and his shop and 
 house robbed to supply the extravagance of an appren- 
 tice who frequents gaming. 
 
 In Bacon's Abridgment, sub-tit. Gaming, the common Bacon's 
 law is purported to be declared as follows : " By the Gaming, 
 common law the playing at cards, dice, &c., when 
 practised innocently and as a recreation, and the better 
 to fit a person for business, is not unlawful, nor punish- 
 able as any offence whatsoever ; " but later it is stated 
 " that, from the destructive consequences of excessive 
 gaming, both courts of law and equity have shown 
 abhorrence to it." The accuracy of the first excerpt 
 has recently been questioned by Hawkins, J., in the 
 case of Jenks v. Turnin (o). but the second excerpt is Jenfa v. 
 
 Turpin. 
 
 (n) Woodroffe v. Farnham, 2 Vern. 290. It appears that the 
 apprentices for playing whist would have been subject to a 
 penalty of 40s., under sect. 16 of 33 Hen. VIII. c. 9 ; hence the 
 illegality of the bond in the above case. 
 
 (o) Jenks v. Turpin, 13 Q. B. D. 505 ; 53 L. J. M. C. 161 ; 50 
 L. T. 808 ; 49 J. P. 20; 15 Cox, C. C. 486.
 
 38 THE LAW OF GAMBLING. 
 
 supported by the authorities hereinbefore cited. It 
 would appear that the second statement is somewhat 
 destructive of the limitation contained in the first ; for, 
 if it be suggested that a lawful game became, when no 
 longer played " innocently as a recreation, the better to 
 fit a person for business," at once unlawful by the 
 common law, one would not expect devices of imparlance, 
 or in a court of equity suggestions that gaming ought to 
 be discouraged. Hawkins, J., states that he does not find 
 the qualification, when practised innocently and as a recrea- 
 tion, the better to fit a person for business, recognized in any 
 reported case or in any of the other old text books (p}. 
 
 K. v. Rogier. I n _g. v . Rogier (q) there is a dictum of Abbott, 0. J., 
 that the playing for large and excessive sums of money 
 would of itself make any game unlawful; but that 
 principle is not supported by any authority, and was 
 enunciated at a time when statutes were in force under 
 which games for excessive stakes were illegal. Smith, J., 
 in the before-mentioned case of Jenks v. Turpin, approves 
 of the dictum in question, and thinks it still good law, 
 and therefore common sense, even though the statutes 
 against excessive gaming have been repealed. It is, 
 however, submitted that the balance of the autho- 
 rities is against its validity otherwise than as explained 
 by Hawkins, J. Beyond question, the playing of a 
 game for an excessive stake would be most material 
 evidence to prove the keeping a common gaming 
 house. 
 
 Gaming. Gaming does not consist merely in the playing of a 
 
 game ; it consists essentially in playing a game for 
 money or some other valuable thing. To play dominoes 
 
 (p) Jenks v. Turpin, 13 Q. B. D. at p. 516. 
 
 (q) It. v. Bogier, 1 B. & C. at p. 275; 2 D. & K. 431.
 
 WAGERS, GAMES AND GAMING AT COMMON LAW. 39 
 
 is not to game, but to play it for money is gaming (r). 
 Anyone who, in the course of gaming, was guilty of 
 cheating, as, for instance, by playing with false cards, 
 dice, &c., could be indicted for it at common law, and 
 fined and imprisoned according to the circumstances of 
 the case (s). At common law an indictable nuisance 
 was constituted by keeping a common gaming house, Common 
 that is to say, a house where a large number of persons fousesf 
 are invited habitually to congregate for the purpose of 
 gaming. In Hawkins' Pleas of the Crown, book 1, 
 c. 75, s. 6, it is said : " There is no doubt but that 
 common bawdy houses are indictable as common nui- 
 sances : also it hath been said, that all common stages 
 for rope dancers, and 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 ; " and in section 7, " a common play 
 house may be a nuisance if it draws together such num- 
 bers of coaches or people as prove generally inconvenient 
 to the places adjacent ; " but the learned author then 
 distinguishes " nuisances so occasioned and such nui- 
 sances as bawdy houses and common gaming houses," 
 stating that " play houses are not nuisances in their own 
 nature, but may only become such by accident, whereas 
 the others cannot but be nuisances." 
 
 Blackstone, in his Commentaries, Book iv., p. 171, in 
 a section on the offence of gaming, advances considera- 
 tions which, though not therein restricted to gaming 
 houses, give reasons why common gaming houses are 
 
 (r) R. v. Aahton, 1 E. & B. 286 ; 22 L. J. M. 0. 1 ; 17 Jur. 501. 
 () 2 Koll. Abridg. 78 ; Holyday v. Oxenbridge, Or. Chas. 234.
 
 40 THE LAW OF GAMBLING. 
 
 public nuisances : " Next to that of luxury, naturally 
 follows the offence of gaming, which is generally intro- 
 duced to supply or retrieve the expenses occasioned by 
 the former ; it being a kind of tacit confession that the 
 company engaged therein do in general exceed the 
 bounds of their respective fortunes, and therefore they 
 cast lots to determine upon whom the ruin shall at 
 present fall, that the rest may be saved a little longer. 
 But, taken in any light, it is an offence of the most 
 alarming nature, tending by necessary consequence to 
 promote public idleness, theft, and debauchery among 
 those of the lower class ; and among persons of a supe- 
 rior rank it hath been frequently attended with the 
 sudden ruin and desolation of ancient and opulent 
 families, an abandoned prostitution of every principle 
 of honour and virtue, and too often hath ended in self 
 murder. ... It is the gaming in high life that de- 
 mands the attention of the magistrate ; a passion to 
 which every valuable consideration is made a sacri- 
 fice" (t). Again, in Russell on Crimes, vol. i. p. 428, 
 the principle on which a common gaming house is a 
 public nuisance is stated as follows : " They are detri- 
 mental to the public, as they promote cheating and 
 other corrupt practices, and incite to idleness and avari- 
 cious ways of gaining property great numbers whose 
 time might otherwise be employed for the good of the 
 community." In R. v. Rogier (w), the general principle 
 is enunciated that " any practice which has a tendency 
 to injure public morals is a common law offence." It 
 has been held that it is not necessary that the neigh- 
 
 () Blackstone cites Tacitus, De Mor. Germ. c. 24, and suggests 
 that the tendency to gaming is inherited from those ancestors. 
 (u) See ante, p. 38.
 
 WAGERS, GAMES AND GAMING AT COMMON LAW. 41 
 
 bourhood should be inconvenienced by the drawing 
 together of disorderly persons ; without that public 
 annoyance, a house may be still a common gaming 
 house (x) and a public nuisance (y). 
 
 The freedom allowed by the common law with regard 
 to wagers, games, and gaming was gradually restricted 
 by a series of statutory enactments, which will form the 
 subject-matter of the next two chapters. 
 
 () R. v. Rice, L. E. 1 0. C. E. 21 ; 35 L. J. M. C. 93 ; 12 Jur.. 
 N. S. 126 ; 13 L. T. 382 ; 14 W. E. 56 ; 10 Cox, 0. C. 155 ; and 
 Hawkins, J., in Jenks v. Turpin, 13 Q,. B. D. 505. 
 
 (y) Instances of indictments for public nuisances will be 
 found in the following cases : rope dancing booth, at Charing 
 Cross : 1 Mod. 76 ; 2 Keb. 846 ; a cock pit : 3 Keb. 464 ; a play 
 house : 5 Mod. 142 ; 1 Vent. 169.
 
 42 THE LAW OF GAMBLING. 
 
 CHAPTER III. 
 
 GAMES INVOLVING SKILL AND CHANCE. 
 
 STATUTORY ENACTMENTS. 
 
 Section K.The Statute of Hen. VIII. 
 Section B. Excessive and Deceitful Gaming. 
 Section C. Horse Racing. 
 
 Section D. Cockfighting and other Sports cruel to 
 Animals. 
 
 Section A. The Statute of Hen. VIII. 
 
 1541 THE first steps taken by the legislature against gaming 
 were avowedly for the purpose of preventing the sub- 
 jects from wasting their time over useless games, and, 
 as a consequence, having their attention drawn away 
 from archery. Several statutes having this object in 
 view had been passed previously to 1541, but in that 
 year the 33 Hen. VIII. c. 9, came into force, and re- 
 pealed all previous enactments, and laid down the law 
 for the future. 
 33 Hen. VIII. This Act, which is intituled "An Act for the 
 
 c 9. 
 
 Object of Maintenance of Artyllarie and debaringe unlawful 
 Games," complained that, owing to the unlawful 
 games and plays which were in vogue all over the 
 kingdom, archery and good shooting were being
 
 GAMES INVOLVING SKILL AND CHANCE. 
 
 grievously injured, and that an Act, which had been 
 passed in a previous year of the same reign (a), was 
 defrauded by subtle, inventative, and crafty persons, 
 who had discovered many and sundry " new and crafty 
 games and plays, such as logitinge in the field, styde- 
 thrife, otherwise called shovegrote," and that houses 
 and alleys were kept for their maintenance, with the 
 result that archery was sore decayed, and was likely to 
 become more so still ; that the boywers and fletchers 
 had left the kingdom and taught their trade to 
 foreigners, to the great detriment of England ; and 
 that the bow-makers had, from want of work, resorted 
 to London, thereby leaving many places in the country 
 unfurnished with anyone to teach their craft. The Act 
 then states that the good archers with which the king- 
 dom had always been provided had acted not only as a 
 defence against foreign enemies, but also had made 
 many places obedient, and that as people were too poor 
 to buy long bows on account of indulging in tennis 
 play, bowles, coysh, and other unlawful games, poverty, 
 murders, and robberies had resulted. 
 
 The statute, by section 11, enacts that for the future Sect. n. 
 no one of whatever quality or condition shall by him- Keeping a 
 
 place for 
 
 self, factor, deputy, servant, or other person, for his or purposes 
 their gain, lucre, or living, keep, have, hold, occupy, forbidden, 
 exercise, or maintain any common house, alley, or place 
 of bowling, coyting, cloysh, cayles, half bowl, tennis, 
 dicing table or carding, or any game prohibited by any 
 previous statute, or any unlawful new game then in- Unlawful 
 vented or thereafter to be invented. A penalty was n 
 inflicted both on the person keeping such house or alley 
 and on the players. Provisions are then made as to the 
 
 (a) 3 Hen. VIII. , made perpetual by 6 Hen. VIII.
 
 44 
 
 THE LAW OF GAMBLING. 
 
 Restrictions 
 on certain 
 classes of 
 people. 
 
 1729. 
 
 Executive 
 powers of last 
 statute 
 extended. 
 
 Resume of 
 
 statute. 
 
 granting of licences, and power of search is given to the 
 officers of the shires, cities, and boroughs to enter sus- 
 pected houses, and, in the event of their finding gaming 
 being carried on, to arrest and imprison both the keepers 
 of the houses and the people found playing. 
 
 The statute then prohibits certain classes of people 
 absolutely from playing at " tables, tennis, dice, cards, 
 bowls, clash-coyting, logatinge, or any other unlawful 
 games," except at Christmas time, and then only in 
 their masters' houses or presence. Bowls are not to be 
 played by anyone in any open place except a private 
 garden or an orchard, and a penalty is imposed on any- 
 one committing any such offence. 
 
 In 1729 the 2 Greo. II. c. 28, was passed, which, after 
 reciting that under the previous statute of Hen. VIII. 
 the justices of the peace had not power to take sufficient 
 security from people found playing at games contrary 
 to the provisions of that Act, confers upon them more 
 extended powers. 
 
 It thus appears that there is nothing in this statute 
 of Hen. VIII. to make any game absolutely unlawful. 
 The statute does no more than to make it unlawful, 
 first, for any person to keep for gain any house for 
 playing at the specified games or new games ejwdem 
 generis; and, secondly, for persons to haunt or use 
 such a house. And persons of humble rank were pro- 
 hibited from playing such games out of Christmas or 
 save with a licence, &c. The games are called unlawful, 
 but the illegality is only conditional (b). 
 
 (6) Jenks v. Turpin, 13 Q. B. D. 505; 53 L. J. M. C. 161 ; 50 
 L. T. 808 ; 49 J. P. 20; 15 Cox, 0. C. 486.
 
 GAMES INVOLVING SKILL AND CHANCE. 
 
 Section B. Fraudulent and Excessive Gaming. 
 
 In 1664, an Act intituled " An Act against deceitful, pj 
 disorderly, and excessive gaming" (16 Car. II. c. 7) was c. 7. 
 passed. The title suggests the evils to which it was 
 directed, and its policy was to protect the losers against 
 the winners. The preamble recites that, " whereas all Preamble. 
 
 Aim of 
 
 lawful games and exercises should not be otherwise used statute. 
 than as innocent and moderate recreations, and not as 
 constant trades or callings to gain a living or make 
 unlawful advantage thereby ; and whereas, by the im- 
 moderate use of them, many mischiefs and inconve- 
 niences do arise, and are daily found to the maintain- 
 ing and encouraging of sundry idle, loose, and disorderly 
 persons in their dishonest, lewd, and dissolute course of 
 life, and to the circumventing, deceiving, cousining, and 
 debauching of many of the younger sort, both of the 
 nobility, gentry, and others, to the loss of their precious 
 time and the utter ruin of their estates and fortunes, 
 and withdrawing them from noble and laudable exercise 
 and employment." In the first section the common 
 law, under which it was an indictable offence to cheat 
 at gaming, was supplemented, and penalties inflicted. 
 In substance the section is as follows : If any person Sect. 1. 
 
 . . . Dishonest 
 
 shall " by any fraud, shift, cousenage, circumvention, gaming, &c. 
 deceit, or unlawful device or ill practice whatsoever, in 
 playing at or with cards, dice, tables, tennis, bowls, 
 skittles, shovel board, or in any cock fightings, horse 
 races, dog matches, foot races, or other pastimes, game, 
 or games whatsoever, or in or by bearing a share or part 
 in the stakes, wagers, or adventures, or in or by betting
 
 46 
 
 THE LAW OF GAMBLING. 
 
 Sect. 3. 
 Honest, but 
 excessive 
 gaining, &c. 
 
 Where limit 
 exceeded the 
 contract and 
 securities, 
 both void. 
 
 on the sides or hands of such as do or shall play, act, 
 ride, or run as aforesaid," win, obtain, or acquire any 
 money or other valuable thing, he shall for such offence 
 forfeit treble the sum or value of the money or other 
 thing so won, obtained, or acquired. Such forfeit was 
 to be applied as therein mentioned, and if the loser did 
 not within six months from the date of the offence sue 
 for the penalty, then provisions were made for strangers 
 so to sue. 
 
 The third section was directed at excessive and im- 
 moderate and not at dishonest gaming, and the mode 
 of restriction adopted was to limit play otherwise than 
 with or for ready money. The section was as follows : 
 " If any person shall play at any of the said games 
 or any other pastime, game, or games whatsoever (other 
 than with or for ready money), or shall bet on the sides 
 or hands of such as do or shall play thereat, and shall 
 lose any sum or sums of money, or other thing or things 
 so played for, exceeding the sum of 100/. at any one 
 time or meeting upon ticket or credit or otherwise, and 
 shall not pay down the same at the time when he or 
 they shall lose the same, the party or parties who loseth 
 or shall lose the said moneys or other thing or things so 
 played or to be played for above the said sum of 100/., 
 shall not in that case be bound or compelled or com- 
 pellable to pay or make good the same ; but the contract 
 and contracts for the same and for every part thereof, and 
 all and singular judgments, statutes, recognizances, mort- 
 gages, conveyances, assurances, bonds, bills, specialties, pro- 
 mises, covenants, agreements, and other acts, deeds, and 
 securities whatsoever, which shall be obtained, made, given, 
 acknowledged, or entered into for security or satisfaction of 
 or for the same or any part thereof, shall be utterly void
 
 GAMES INVOLVING SKILL AND CHANCE. 47 
 
 and of no effect ; and that the person or persons so win- 
 ning the said moneys or other things shall forfeit and 
 lose treble the value of all such sum or sums of money 
 which he shall so win, gain, obtain, or acquire above the 
 said sum of 100/." The remainder of the section dealt 
 with the application and recovery of the penalties. 
 
 In 1710 a further statute was passed, having the 
 same policy in view, but much more drastic in its 1710. 
 measures. 9 Ann. c. 14, was entitled, " An Act for Extending the 
 
 the better preventing excessive and deceitful gaming," Pkcy of the 
 
 statute of 
 
 and after reciting that the laws in force were insufficient Charles II. 
 to prevent the mischiefs which happen by gaming, it 
 went on to enact, " that all notes, bills, bonds, judg- 
 ments, mortgages, or other securities or conveyances Avoidance of 
 whatsoever given, granted, drawn, or entered into or 
 executed by any person or persons whatsoever, where 
 the whole or part of the consideration of such convey- 
 ances or securities shall be for any money or other 
 valuable thing whatsoever icon by gaming or playing at 
 cards, dice-tables, tennis, bowles, or other game or games 
 whatsoever, or by betting on the sides or hands of such as 
 do game at any of the games aforesaid, or for the reim- 
 bursing or repaying any money knowingly lent or advanced 
 for such gaming or betting as aforesaid, or lent or advanced 
 at the time and place of such play to any person or persons 
 so gaming or betting as aforesaid, or that shall during 
 such play so play or bet, shall be utterly void, frustrate, 
 and of none effect to all intents and purposes whatsoever." 
 The statute then particularizes, and enacts, though the 
 provisions have since been entirely repealed (c), that 
 " where such mortgages, securities, or other convey- 
 
 (c) 5 & 6 Will. IV. c. 41.
 
 48 
 
 THE LAW OF GAMBLING. 
 
 Excessive 
 play. 
 
 Limit 
 lowered. 
 
 ances shall be of lands, tenements, or hereditaments, 
 or shall be such as encumber or affect the same, such 
 mortgages, securities, or other conveyances shall endure 
 and be to and for the sole use and benefit of, and shall 
 devolve on such person or persons as should or might 
 have or be entitled to such lands, tenements, or here- 
 ditaments in case the said grantees or grantors thereof, 
 or other person or persons so encumbering the same, 
 had been naturally dead, and as if such mortgages, 
 securities, or other conveyances had been made to such 
 person or persons so to be entitled after the decease of 
 the person or persons so encumbering the same, and 
 that all grants or conveyances to be made for the pre- 
 venting of such lands, tenements, or hereditaments from 
 coming to or devolving upon such person or persons 
 hereby intended to enjoy the same as aforesaid shall 
 be deemed fraudulent and void, and of none effect to 
 all intents and purposes whatsoever." Having thus 
 dealt with securities, the statute next lowers the limit 
 of the amount of money that might be lawfully won 
 or lost : " Any person or persons whatsoever who shall 
 at any one time or sitting by playing at cards, dice- 
 tables, or other game or games whatsoever, or by 
 betting on the sides or hands of such as do play at 
 any of the games aforesaid, lose to any one or more 
 person or persons so playing or betting in the whole 
 the sum or value of 10/., and shall pay or deliver the 
 same or any part thereof to the person or persons so 
 losing and paying or delivering the same, shall be at 
 liberty within three calendar months then next to sue 
 for and recover the money or goods so lost and paid 
 or delivered, or any part thereof, from the respective 
 winner or winners thereof."
 
 GAMES INVOLVING SKILL AND CHANCE. 49 
 
 To win at any game by fair play more than 10/. 
 from any one or more persons at any one time or 
 sitting was forbidden. As it had thus become an 
 offence to win more than 10/. at one time, it follows 
 that the loser was particeps criminis, but the section 
 last quoted enabled him, nevertheless, to recover his 
 money. After this statute came into force, a person 
 might at one sitting or time win up to the value of 
 10/. either by gaming or betting on the hands of the 
 players, and recover by action, but the first section Under the 
 renders all securities for such transactions void ; hence contract not 
 the curious result that whilst a legal obligation to pay avoided - 
 WZ. might exist, yet any security, real or personal, or 
 any conveyance executed in consideration of such obli- 
 gation was void to all intents and purposes. The 
 statute next orders that every person sued shall be 
 compellable to answer upon oath any bill that shall 
 be proffered against him for discovering the sum of 
 money or other thing so won at play, and provides 
 that on discovery and repayment he shall be acquitted, 
 and discharged from any other punishment. 
 
 The statute also deals with fraudulent gaming, and Fraudulent 
 enacts that if anyone "shall by any fraud or shift, 
 cousenage, circumvention, deceipt, or unlawful device or 
 ill practice whatsoever, in playing at or with cards, dice, 
 or any of the games aforesaid," or by taking any part 
 therein, obtain any sum or valuable thing, or " shall at 
 any one time or sitting win of any one or more persons 
 whatsoever above the sum or value of 10/., that then 
 every person so winning by such ill practice, and being 
 convicted of any of the said offences, upon an indict- 
 ment or information to be exhibited against him or 
 them for that purpose, shall forfeit five times the value 
 
 G. E
 
 50 
 
 THE IAW OF GAMBLING. 
 
 Living by 
 gambling. 
 
 Quarrels at 
 gaming, &c. 
 
 Transactions 
 within the 
 two last- 
 mentioned 
 acts. 
 
 Games, sports, 
 pastimes. 
 
 of the sum or sums of money or other thing so won as 
 aforesaid, and in case of such ill practice as aforesaid 
 shall be deemed infamous, and suffer such corporal 
 punishment as in cases of wilful perjury, and such 
 penalty to be recovered by such person or persons as 
 shall sue for the same by such action as aforesaid." 
 The Act further states that divers lewd and dissolute 
 persons live by carrying on gaming, and to prevent this 
 the justices of the peace are authorized to' have brought 
 before them every person whom they shall have just 
 cause to suspect to have no visible estate, and if such 
 person shall fail to make it appear that the principal 
 part of their expenses is not maintained by gambling, 
 the justices shall require of them sufficient securities for 
 their good behaviour for twelve months, and, in default 
 of their finding such securities, the justices are to 
 commit them to prison until they shall find such se- 
 curities. And if the persons so finding securities shall, 
 during such time as they continue bound, at any one 
 time play or bet for any sum exceeding 20s., such play 
 shall be taken to be a breach of their behaviour, and 
 their recognizances shall be forfeited. 
 
 The statute to prevent quarrelling enacts that if any- 
 one shall assault or provoke anyone to fight on account 
 of money won at gaming or betting, such person, upon 
 being convicted, shall forfeit to the crown all his goods 
 and chattels and personal estate, and shall also suffer 
 imprisonment for two years without bail or mainprize. 
 
 It will have been noticed that the two statutes relate 
 solely to games, sports, and other pastimes. The earlier 
 statute makes an explicit enumeration of the games and 
 sports concerning which it was passed playing at or 
 with cards, dice, tables, tennis, bowls, skittles, shovel
 
 GAMES INVOLVING SKILL AND CHANCE. 
 
 51 
 
 board, or in any cock fightings, Horse races, dog matches, 
 foot races, or other pastime, game, or games what- 
 soever ; and although the Statute of Anne only speaks 
 of " any game whatsoever," it was expressed in its pre- 
 amble to be an extension of the earlier statute, so there 
 can be no doubt but that the subject matter of the latter 
 Act is as inclusive as that of the earlier one. Thus, in 
 Goodburn v. Mar ley (d), it was held that a horse race, 
 though not explicitly mentioned in the Statute of Anne, 
 came within its operation. In Jeffreys v. Walker (e), it 
 was admitted that a match between certain persons 
 who styled themselves " the County of Kent " against 
 certain other persons who styled themselves " all 
 England " at a certain game called cricket was within 
 the statute. In the case of Lynall v. Longbotham (/), it 
 was held that a foot race, even by one man running by 
 himself against time in the way of play, was within the 
 latter statute. For " there is no doubt that horse races 
 are within the statute of Anne according to Goodburn v. 
 Marley (d), and foot races must be also, for they are men- 
 tioned in 16 Car. II. c. 7, to which statute the later 
 statute must relate." That horse races were within 
 the statute of Anne is seen also by reference to Clayton , 
 v. Jennings (#), Blaxton v. Pye(h], Brown v. Berkeley (i), 
 Applegarth v. Colley (k). 
 
 Only such bets as were made on the sides or hands Wagering on 
 
 (d) Goodburn v. Marley, 2 Strang. 1159. 
 
 (e) Jeffreys v. Walker, 1 Wils. 220. 
 (/) Lynall v. Longlotham, 2 Wils. 36. 
 (</) Clayton v. Jennings, 2 Bl. 706. 
 
 (h) Blaxton v. Pye, 2 Wils. 309. 
 (t) Brown v. Berkeley, 1 Cowp. 281. 
 
 (k) Applegarth v. Colley, 10 M. & W. 723; 12 L. J. Ex. 34; 
 7 Jur. 18. 
 
 E2
 
 52 
 
 THE LAW OF GAMBLING. 
 
 the sides or of such as do or shall play were effected by the statute. 
 Thus in Lynallv. Longbotham (/), in defence to an action 
 to recover money lost on a bet, it was declared that the 
 money was lost by betting on the side of one J. C. at 
 a certain game called a foot race ; but the plaintiff 
 failed on the ground that it was not stated in the decla- 
 ration, nor stated in the case, that J. C. was playing at 
 a game called a foot race. Such a strict construction 
 of the Act was necessitated by the fact that the statute 
 was not remedial, but penal. But when there is play, 
 then the bet, to be within the statutes, must be on 
 the chance of the play, and not on anything collateral 
 thereto, such as on the proper rules of the game. 
 Thus, a bet for 100 guineas made by players at back- 
 gammon on a point as to the proper mode of playing 
 the game was held to be enforceable (m) . Again, in 
 Pugh v. Jenkins (), a wager pursuant to which the 
 plaintiff was to pay the defendant 11., or the defendant 
 was to pay the plaintiff 50/., according to the success 
 or failure of a certain horse in the Derby on the pre- 
 vious day, was enforced on the ground that it was 
 a wager on the accuracy of information relating to the 
 race, and not on the event of the game. 
 
 When the game or wager was within the statute, 
 the question of exceeding the statutory limit, would next 
 arise. Numerous cases were decided on the point as to 
 what constituted one time or sitting (o), but under the 
 
 (/) Lynall v. Longbotham, 2 Wils. 36. 
 
 (TO) Pope v. St. Leger, 1 Salk. 344; but cf. Brown v. Leeson, 
 2 H. Bl. 43. 
 
 (n) Pugh v. Jenkins, 1 Q. B. 631 ; 1 GK & D. 40 ; 5 Jur. 
 1082. 
 
 (o) Edgebury v. Rosindale, 2 Lev. 94 ; Vent. 253 ; Hudson v. 
 Malin, 1 Freem. 432; 3 Keb. 671; Hill v. Pheasant, 2 Mod. 
 
 As to the 
 limits.
 
 GAMES INVOLVING SKILL AND CHANCE. 53 
 
 present state of the law these cases have no direct 
 importance, though anyone curious to see how such 
 a limitation works may consult them. It was not 
 necessary for the money all to be lost to one man. 
 The limit might be exceeded where more than the 
 100/. or the 101. was lost to different people (p). In 
 considering whether a wager exceeded the limit, it was 
 sufficient, in order to maintain the affirmative, to prove 
 that one party only stood thereunder to win or lose 
 101. or more than that sum. Thus, in Blaxton v. 
 Pye (q), the plaintiff sued the defendant for the sum 
 of eight guineas, won on a wager by the plaintiff from 
 the defendant; but seeing that if the defendant had 
 won he would have been unable to recover the fourteen 
 guineas to which amount he would then have been 
 entitled, it was held that the plaintiff could not recover 
 the eight. The same point was decided in the same 
 way in the case of Clayton v. Jennings (r). 
 
 Where neither party to the wager stood to win or Wagers valid 
 lose 101., or more than 101., the wager was enforceable, statute. & 
 even though made on the hands or sides of persons 
 playing at a game, sport, pastime, or exercise within 
 the statute (s). 
 
 There is a curious and, perhaps, intentional omission Money lent. 
 in the statute of Anne in relation to money knowingly 
 lent or advanced for gaming or betting. The statute 
 does not avoid the contract of loan, but it does avoid 
 any and every security taken for the carrying out of 
 
 541; 1 Freem. 200; Danvers v. Thistlethwayte, 1 Lev. 244; 
 Dickson v. Pawlet, 1 Salk. 344 ; Bones v. Booth, 2 Bl. 1225. 
 
 (p) Noell v. Reynolds, 2 Show. 467. 
 
 (q) Blaxton v. Pye, 2 Wils. 309. 
 
 (r) Clayton v. Jennings, 2 Bl. 706. 
 
 (a] M'Alleater v. Hoden, 2 Camp. 438 ; Bulling v. Frost, 1 Esp. 
 Gas. 235.
 
 54 THE LAW OF GAMBLING. 
 
 the obligation thereunder arising. In the case of 
 Barjeau v. Walmsley (t), money lent for gaming with- 
 out security was held to he recoverable as a loan. 
 " The Parliament might think there would be no 
 great harm in a parol contract where the credit was 
 not like to run very high." In the case of Robinson v. 
 Bland (w), the validity of the contract of loan and the 
 invalidity of a bill of exchange given as security are 
 strongly contrasted. The following were the facts : 
 The plaintiff lent Sir J. Bland the sum of 300/. at the 
 time and place of play, and at the same time and place 
 Sir J. Bland lost to the plaintiff a further sum of 372/. 
 Thereupon Sir J. Bland drew a bill of exchange in favour 
 of the plaintiff for 6721. It was held, first, that the bill 
 of exchange was void, being indivisible, and in part to 
 secure the payment of 372/. won at play; secondly, 
 that, apart from the bill, the transaction was divisible, 
 and that the money won was irrecoverable, but that 
 the 300/. so lent as stated could be recovered. In 
 neither of the last two cases was there any suggestion 
 that the play was illegal, and the point does not seem 
 to have been taken that the loans in question may have 
 been tainted with the illegality arising from the winning 
 or losing of more than 10^. at any game within the 
 statute (x). However, in the case of Young v. Moore (y), 
 where the plaintiff had won of the defendant the sum 
 of 471. at divers games of bragg and toss up, it was 
 stated by the court that, "as the statute hath made 
 
 (t) Barjeau v. Walmsley, 2 Strang. 1248. 
 
 () Robinson v. Bland, 2 Burr. 1077. See also Wettenhall v. 
 Wood, 1 Esp. 17. 
 
 (a) As to civil obligations connected with illegal transactions, 
 BQQpost, Chap. VI. 
 
 (y} Young v. Moore, 2 Wils. 67.
 
 GAMES INVOLVING SKILL AND CHANCE. 55 
 
 all securities for money won at play void, d fortiori 
 all parol contracts of this sort are void." Of this sort, 
 because on the affidavits it appeared that the lawful 
 limit had been exceeded. In that case the contract itself 
 was illegal. 
 
 If the money be lent for the purpose of paying a Money lent to 
 debt already incurred at gaming, but be not advanced debt already 
 at the time and place of such gaming, then such a loan mcurred - 
 does not come within the mischief of the words, "money 
 knowingly lent or advanced for gaming or betting." 
 Thus, in Alcinbrook v. Hall (z), the defendant lost a 
 sum of money of more than 10/. on a bet on a horse 
 race, and requested the plaintiff to pay the money for 
 him. The plaintiff discharged the defendant's debt of 
 honour, and subsequently upon an assumpsit recovered 
 from the defendant the money so paid at his request (a). 
 The decision in the case of Ex parte Pyke (V) demon- 
 strates that a security taken for the money so advanced 
 to or paid at the request of the loser would not have 
 been within the Act. 
 
 The policy of fixing a limit was affirmed in the 18 Geo. II. 
 
 c 34 
 
 statute of the 18th of Greo. II. c. 34, intituled, "An p ii c ' 70 f &%. 
 Act to explain, amend, and make more effectual the ing a limit 
 
 * affirmed. 
 
 laws in being to prevent excessive and deceitful 
 gaming . . . ." Under this statute, anyone who 
 won or lost at play, or by betting, at any one 
 time, the sum or value of 10/., or within the space 
 of twenty-four hours the sum or value of 201., was 
 liable to indictment. 
 
 (2) Alcinbrook v. Hall, 2 Wils. 309. 
 
 (a) See now Gaming Act, 1892, post, Chap. IX. 
 
 (b) Ex parte Pyke, 8 Ch. Div. 754; 47 L. J. Bk. 100; 38 
 L. T. 923 ; 26 W. E. 806.
 
 56 THE LAW OF GAMBLING. 
 
 Butaban- The policy of fixing a limit has been abandoned 
 
 since 1845. The foregoing pages will exhibit that 
 phase of the legislation. But their importance lies 
 not only in that exhibition, but in the fact that on 
 those statutes was based the subsequent Act of 5 & 6 
 "Will. IV. c. 41, relating to securities. On the whole, 
 it is found more convenient to treat of the law relating 
 to securities in a separate chapter. 
 
 Section 0. Horse Racing. 
 
 Horse racing has been the subject of a long series of 
 statutory restrictions, which now, however, have been 
 entirely done away with. The only enactment affect- 
 ing it at the present time is 42 & 43 Yict. c. 18, which 
 requires that a licence shall be taken out to hold races 
 in, and within a ten-mile radius of London. 
 
 History of the It will be remembered that section B. of this chapter, 
 when dealing with the statute 16 Car. II. c. 7, showed 
 that gaming on horse races was within the statute, and 
 also within the restrictions of 9 Anne, c. 14. Neither 
 of these statutes affected horse racing per se, or made it 
 in any way illegal, their object being to prevent or 
 curtail gambling. The result of the smallness of the 101. 
 limit imposed by the statute of Anne was that people, 
 in order to keep themselves within the law, held 
 numerous races for stakes below 101., with the further 
 result of deteriorating the breed of horses, so that in 
 1740 the statute of 13 Greo. II. c. 19, was passed, which 
 recites in the preamble as follows : That the great 
 number of horse races for small plates, prizes, or sums 
 of money had contributed very much to the encourage- 
 ment of idleness, to the impoverishment of many of the 
 meaner sort of the subjects of the kingdom, and that
 
 GAMES INVOLVING SKILL AND CHANCE. 
 
 the breed of strong and useful horses had been much 
 prejudiced thereby. Sect. 1 enacts, that no one except 
 the true and bonafide owner shall enter, start, or run any- 
 horse, mare, or gelding for any plate, prize, sum of 
 money, or other thing, and that no one shall enter more 
 than one horse, mare, or gelding for the same race, and 
 that if anyone not being the owner enters or runs a 
 horse he shall be liable to forfeit the horse or the value 
 thereof, and that anyone entering more than one horse 
 for the same race shall forfeit every horse other than 
 the first entered, or its or their value. Sect. 2 enacts, 
 that no race shall be run unless the full, real, and 
 intrinsic value of the prize shall be 601. or upwards, and 
 imposes a penalty on anyone entering, starting, or 
 running any horse for a less sum, and further pro- 
 hibits anyone from advertising, publishing, or pro- 
 claiming any race for a less sum than 50/., under a 
 penalty. 
 
 Section 3 directs that horses of five years old are to 
 carry ten stone weight ; of six years old eleven stone ; 
 and seven years old twelve stone ; and horses carrying 
 less weight are to be forfeited, and the persons enter- 
 ing them are to pay a penalty. Every race must 
 be begun and ended in the same day. By section 4 
 an exception is made for matches held at Newmarket 
 and Blackhambleton, where the sum or value might be 
 less than 50/. The statute goes on to deal with the 
 application of the penalties, and makes provisions for 
 the horse coming in second to receive the entrance 
 money in a race for a plate or prize, and enacts that 
 gifts left for annual races are not to be altered. "With 
 the one exception, that by 18 Greo. II. c. 34, s. 11, the 
 provisions of this statute with regard to the weights to 
 be carried by horses was repealed, it remained in force 
 
 57
 
 58 THE LAW OF GAMBLING. 
 
 till 1840, in which year 3 & 4 Yict. c. 5, was passed, 
 which repealed 13 Greo. II. c. 19, and removed the 
 restriction on horse-racing. In the case of Evans v. 
 Pratt (c), it was agreed between the plaintiff and de- 
 fendant that they should each race a mare across a 
 country for four miles, and if the plaintiff's mare won 
 the defendant should pay the plaintiff 100/., but if the 
 defendant's mare won the plaintiff should pay the de- 
 fendant 251., and they appointed an umpire. The race 
 was run, and the umpire gave his decision in favour of 
 the plaintiff, but the defendant refused to pay the 100/., 
 and on his behalf it was contended that the race was 
 not a bond fide horse race, run upon a race course, but 
 that it was a steeple-chase across country, and, as such 
 therefore, it did not come within the horse racing prac- 
 tised under and according to the statute, Maule, J., held 
 that 18 Greo. II. c. 34, relieved the parties not only 
 from the penalties imposed by 13 Greo. II. but also 
 from any illegality imposed by the former statutes . . . 
 and stated that the object of the legislature through- 
 out these enactments has been to encourage the pro- 
 duction of a strong and powerful breed of horses ; and 
 that such a cross-country steeplechase as this was a race 
 calculated to further that object. 
 
 By 8 & 9 Yict. c. 109, s. 15, the Act of 16 Car. II. 
 c. 7, was repealed, and also so much of 9 Anne, c. 14, 
 as had not already been repealed by 5 & 6 Will. IV. 
 c. 41, and also as much of 18 Greo. II. c. 34, as related 
 to the Act of Anne. 
 
 The Act now In 1879, the 42 & 43 Yict. c. 18, was passed, which 
 42& r 43Vict. i" 3 entitled an "Act for Licensing the Metropolitan 
 
 o. 18. 
 
 (c) Evans v. Pratt, 3 M. & Gr. 759 ; 4 Scott, N. E. 378 ; 1 
 D. N. S. 505 ; 6 Jur. 152.
 
 GAMES INVOLVING SKILL AND CHANCE. 59 
 
 Suburban Race Courses," which after reciting that Astolicens- 
 annoyance and injury are caused by races being held in courseiTwithin 
 thickly populated places, defines a horse race as a com- ^ lles of 
 petition of one horse against any other horse or against Cross. 
 time, for any prize or for any bet to be made in respect 
 of such horse, and at which more than twenty persons 
 shall be present. This statute enacts that it shall be 
 unlawful for any race to be held within a radius of ten 
 miles from Charing Cross, unless in a place where a 
 licence for horse racing has been obtained pursuant to 
 the provisions of the Act. Such licence can be obtained 
 from the local justices assembled at any Michaelmas 
 Quarter Sessions of the peace. The justices are em- 
 powered at their discretion to grant or withhold the 
 licence. When granted such licence is valid for twelve 
 months dating from the 25th day of March next following 
 the date of application. 
 
 Section 5 imposes a penalty of 101. or an imprison- 
 ment not exceeding two months on any person who 
 takes part in any horse race in any unlicensed place, 
 and (section 6) everyone, who being the owner or lessee 
 or in possession of any place allows racing without a 
 licence is rendered guilty of a misdemeanor, and on 
 conviction is punishable by a fine of not less than 51. 
 nor more than 25/., or by imprisonment of not less than 
 one nor more than three months. Horse races taking 
 place in contravention of the provisions of this Act are 
 to be deemed a nuisance. It will thus be seen that 
 with the exception of the restrictions on holding races 
 in and near London horseracing is, at the present time, 
 a perfectly legal sport or pastime, and in no way re- 
 stricted by any statute.
 
 60 THE LAW OF GAMBLING. 
 
 Section D. Cock Fighting and other Sports cruel to 
 Animals. 
 
 The reader is referred to Brandt on Graining, Chapters 
 XVII. and XVIII., for an historical account of the 
 various cruel sports and pastimes. These pastimes are 
 now under statutory prohibitions, and are condemned 
 by reason of their intrinsic cruelty. 
 
 It would appear that from time to time Royal Pro- 
 clamations denounced these exhibitions as " idle and 
 unlawful," " dishonest, trivial, and useless," and Lord 
 Ellenborough, in Squiers v. W/iisken(d), described cock 
 fighting as " a barbarous diversion, which ought not to 
 be encouraged or sanctioned in a court of justice." But 
 the question of the illegality at common law of these 
 pastimes, or at least of cock fighting, would present 
 some difficulty if it were of sufficient importance to in- 
 vestigate. In the case of It. v.Howel(e), the defendant, 
 on an indictment at common law, was fined 127. for 
 keeping a common cockpit for six days : the Court held 
 it an offence at common law to keep a cockpit, and 
 measured the penalty by the 33 Hen. VIII. c. 9. 
 
 In the case of Squiers v. Whisken (d), it was admitted 
 that there was no statutory prohibition in respect of 
 cock fighting, and none was enacted until shortly before 
 the commencement of the present reign. 
 
 The statute 5 & 6 Will. 4, by sect. 3, inflicted a 
 penalty not to exceed 5L in all, or to be less than ten 
 shillings for each day, on any one who should keep or 
 use any place for the purpose of cock fighting and other 
 sports cruel to animals, and by the Metropolitan Police 
 
 (d) Squiers v. Whisken, 3 Camp. 140. 
 
 (e) R. v. Howel, 3 Keb. 465510.
 
 GAMES INVOLVING SKILL AND CHANCE. 61 
 
 Act of 1839 (<?), in addition to the above-mentioned 
 penalty, a power to search suspected places was given to 
 the police, and persons found therein were subjected to 
 a fine of five shillings. By 12 & 13 Yict. c. 92, s. 3, 
 the first-mentioned statute was repealed, and the penalty 
 for keeping or using any place for the purpose of cock 
 fighting was increased to 51. for each day. and persons 
 found encouraging, aiding, or assisting were likewise 
 to be fined 5/. 
 
 (0) 2 & 3 Viet. c. 47, s. 47.
 
 62 THE LAW OF GAMBLING. 
 
 CHAPTER IV. 
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 
 
 THIS chapter is concerned, almost exclusively, with 
 lotteries, and with the long series of statutory enact- 
 ments by which this species of gambling was gradually 
 restricted. Other games of pure chance, as will here- 
 after be seen, were also dealt with incidentally in some 
 of the Acts. The early history of the statutes is much 
 involved in the fact that public lotteries were, until 
 1823, a recognised means of raising the revenue. No 
 stronger economic condemnation of such a policy is to 
 be found than the fact that it resulted in developing a 
 public and widespread passion for that form of gambling. 
 This evil existed as long as there were state lotteries, 
 and the various statutes enacted for the purpose of 
 abating the nuisance were found to be unsuccessful. 
 Hence Blackstone was of opinion that the series of 
 statutes exemplified the truth, " that the invention of 
 sharpers is swifter than the punishments of the law, 
 which only hunts them from one device to another." 
 Lotteries may be said practically to have died with the 
 abolition of the public lotteries, and from that time 
 forward the repressive statutes have proved to be ade- 
 quate. 
 
 1699. Prior to this date three kinds of lotteries had estab- 
 
 li sne( l themselves in the kingdom. (1.) The public 
 lotteries, to which reference has already been made.
 
 GAMES OF CHANCE STATUTOEY ENACTMENTS. 63 
 
 (2.) Lotteries held under patents or grants issued under 
 the great seal of England. (3.) Lotteries held, both 
 publicly and privately, without any authority whatever. 
 An attempt was made to deal with the second and third 
 of these three classes of evils by stat. 10 & 11 Will. III. 
 c. 17, entitled " An Act for Suppressing Lotteries," the 
 preamble of which sets out that such mischievous games 
 had worked to the utter ruin and impoverishment of 
 many families, and to the reproach of the English laws, 
 so that " several evil-disposed persons had thereby most 
 unjustly and fraudulently got to themselves great sums 
 of money from children and servants and other unwary 
 persons." It was, therefore, enacted that such lotteries 
 under the colour of letters patent or grants or other 
 lotteries are common and public nuisances, and that all 
 grants, patents, and licences for such lotteries, or any 
 other lottery, are void and against law. It was further 
 made an offence for any person, either publicly or pri- 
 vately, to exercise, keep open, show, or expose to be 
 played at, drawn at, or thrown at, any such lottery, 
 either by dice, lots, cards, balls, or any other numbers 
 or figures, or in any way whatsoever. The penalty for 
 every such offence was fixed at 500/., and everyone was 
 forbidden to draw, throw, or play at any such lottery 
 or any other lottery. 
 
 It would appear, however, that so far as the third 
 class of lotteries was concerned, the statute was imper- 
 fectly operative, for we find it stated in a statute of 
 9 Anne, c. 6, that several persons had set up lotteries in 1710. 
 imitation of the public lotteries, to the prejudice of the 
 public and to the defrauding of her Majesty's subjects. 
 By the 66th section of this statute the authorities were 
 accordingly required to use their utmost endeavours to 
 enforce the afore-mentioned Act, and it was further
 
 64 THE LAW OF GAMBLING. 
 
 enacted by the 67th section that it should he an offence 
 to set up, or by writing or printing to publish the setting 
 up of, any such unlawful lottery, with intent to have 
 such lottery drawn. 
 
 That these prohibitions were still evaded is shown by 
 
 17H. a statute of the following year (10 Anne, c. 26), which, 
 after reciting the two last-mentioned Acts, goes on to 
 state that many ill-disposed persons had set up offices 
 under the denomination of sales of gloves, fans, of cards, 
 of numbers, and of the Queen's picture, for the improve- 
 ment of small sums of money, and that advertisements 
 thereof were daily published in the common printed 
 newspapers or otherwise. Any such formal disguise of 
 the real substance of the lottery was then rendered in- 
 effectual by the 108th section of the statute, which 
 enacts that any person so guilty, or guilty of setting 
 up, &c., any like office or place under the pretence of 
 improving small sums of money, should forfeit for every 
 such offence the sum of 500/., and it was further made 
 an offence to publish by writing or printing any such 
 office or place. 
 
 1718. But the evasion of the statutes still continued. Thus, 
 
 in sect. 43 of 5 Geo. I. c. 10, it is stated that, not- 
 withstanding previous enactments, several persons had 
 given public notice for taking subscriptions for the sale 
 of chances, or parts of chances, to arise in the tickets of 
 a public lottery, not being possessed of the tickets on 
 which such chances are proposed to be sold, and thereby 
 had erected another lottery, and had entered into an 
 undertaking resembling a lottery for their private benefit. 
 The section then lays down enactments for the suppres- 
 sion of such abuses. 
 
 It was not long, however, before it was discovered 
 that an office for the sale of houses, lands, advowsons,
 
 GAMES OF CHANCE STATUTOKY ENACTMENTS. 
 
 presentations to livings, plate, jewels, ships, goods, and 
 other things for the improvement of small sums of 
 money, was not within the statute of 1711, and that, 
 whilst the statute of 1718 undoubtedly prohibited the 
 sale of chances on tickets in a public lottery, not actually 
 in possession of the vendor, yet schemes or proposals for 
 advancing small sums of money by several persons, 
 amounting in the whole to large sums to be divided 
 between them by chances of the prizes in a public 
 lottery, could very easily be worked. Sect. 36 of 1721. 
 statute 8 Greo. I. c. 2, was accordingly enacted to 
 remedy these new evils. 
 
 Having, by the foregoing statute, endeavoured to 
 suppress English lotteries, the legislature now found 
 that, in order to elude these enactments, lotteries, or 
 undertakings in the nature of lotteries, under the pre- 
 tence of some grant or authority of foreign princes or 
 states, were being carried on in this country. The 1722. 
 statute 9 Greo. I. c. 19 was accordingly passed (a), whereby 
 it was made an offence for any person, under the pre- 
 tence aforesaid, to erect, set up, continue, or keep any 
 lottery, or undertaking in the nature of a lottery, under 
 any denomination whatsoever, or to make, print, or 
 publish any proposal or scheme for such a transaction, 
 or within the kingdom to sell or dispose of any ticket in 
 any foreign lottery (b). 
 
 By this time it was evident that the statutes hitherto 
 passed were inadequate for the attainment of their 
 object. It was found that deceitful games and sub- 
 scriptions were still daily carried on under the denomi- 
 
 (o) See also MacNee v. Persian Investment Corporation, 44 Ch. 
 D. 306 ; 59 L. J. Ch. 695 ; 62 L. T. N. S. 894 ; 38 W. E. 59. 
 (b) See further, statute 6 Geo. II. c. 35 (1733). 
 O. F
 
 THE LAW OF GAMBLING. 
 
 nation of sales of houses, lands, advowsons, &o., and 
 that proposals and schemes were published for the sale 
 of such houses, &c., to be determined by raffles and 
 mathematical machines, and by other indirect means, 
 tending to evade the good and wholesome laws herein- 
 before mentioned. Attention, again, was called to the 
 games of ace of hearts, pharaoh, bassett, and hazard, 
 whereby many people, ignorant of the disadvantages 
 under which they played, had for many years lost their 
 money. The evils complained of were accordingly dealt 
 1739. w ith by statute 12 Geo. II. c. 28, by the 1st section of 
 which it was made an offence for any person to set up, 
 continue, or keep any office or place under the denomi- 
 nation of sales of houses, &c., by the way of chances as 
 therein mentioned, or to print or advertise the proposals 
 therein specified, or to deliver out tickets for the same, 
 or for the sale of houses, &c., by any game, method, or 
 device whatsoever depending upon, or to be determined 
 by, any lot or drawing, whether it be out of a box, or 
 wheel, or by cards or dice, or by any machine, engine, 
 or device, of chance of any kind whatsoever. 
 
 By the 2nd section the games of ace of hearts, 
 pharaoh, bassett, and hazard were declared to be games 
 or lotteries by cards or dice within the intent and mean- 
 ing of statutes 10 & 11 Will. HI. c. 17, 9 Anne, c. 6, 
 and 8 Greo. I. c. 2, and it was made an offence to set 
 up or keep the said games. 
 
 By the 3rd section all persons who should be adven- 
 turers in any of the said games, lotteries, or sales were 
 rendered liable to a penalty. 
 
 By the 4th section all such sales of houses, &c., as 
 were thereinbefore prohibited were declared to be void 
 to all intents and purposes whatsoever, and the houses,
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 67 
 
 &c., so exposed for sale were liable to be forfeited to 
 such persons as should sue for the same. 
 
 By the 10th section an exception was made in favour 
 of persons playing or gaming within any of the royal 
 palaces where his Majesty, his heirs, and successors 
 should then reside. 
 
 By the llth section it was provided that the Act 
 should not prejudice any estate in any lands, &c., which 
 should be legally allotted by a partition by lots. Lands 
 really held in joint ownership could, therefore, still be 
 severed, and the respective shares determined by lot, 
 scroll, chance, and allotment. The remaining sections of 
 the statute were directed towards improving the methods 
 for correcting offenders against the other Acts herein- 
 before mentioned. 
 
 By section 13 of the statute 13 Geo. II. c. 19, the 1740. 
 policy of the Act last mentioned was extended for the 
 suppression of a game called passage, and of all other Passage, 
 games then or afterwards to be invented, played with 
 dice or dies, or with any other instrument, engine, or Dice, 
 device in the nature of dice ; and punishments, similar 
 to those in the last Act, were to be inflicted. Back- 
 gammon and other games played with the backgammon 1745 
 table were alone excepted. Subsequently, by statute 
 18 Geo. II. c. 34, the game called roulette or roly-poly Roulette, 
 was brought within the provisions of statute 12 Geo. II. 
 .28. 
 
 In 1782 and 1787, statutes (c) were passed for licensing 1782 and 
 
 1787 
 
 lottery house keepers, and for regulating the sale of 
 tickets in the public lotteries, and for the suppression of 
 adventurers in such lotteries by unlawful sales of tickets 
 or chances of tickets, and for the further suppression of 
 
 (c) 22 Geo. HI. c. 47 ; 27 Geo. HI. c. 1. 
 
 F2
 
 THE LAW OF GAMBLING. 
 
 1802. 
 
 Little goes. 
 
 1836. 
 
 Advertising 
 foreign and 
 other 
 lotteries. 
 
 1823. 
 
 Abolition of 
 public lotte- 
 
 the abuses arising from insurances for or against the 
 drawing of such lotteries. 
 
 The next statute is, at the present day, the most 
 important of the whole series. The statute 42 Oreo. III. 
 c. 119, intituled " An Act to repress certain games and 
 lotteries not authorised by law," was directed against 
 certain imitations of the public lotteries, which, under 
 the name of "little goes," had revived in a wide- 
 spread manner those injuries against which the previous 
 statutes had been passed. It was declared "that all 
 such games and lotteries, called ' little goes,' shall, 
 from and after the passing of this Act, be deemed and 
 are hereby declared common and public nuisances," and 
 any person keeping any office or place for the purpose 
 of carrying on " little goes " was subjected to a penalty, 
 and was to be deemed a rogue and vagabond. It 
 was further made penal for anyone, under any pretence 
 whatever, to promise to pay any sum, or to deliver any 
 goods, or to do, or forbear doing, anything for the 
 benefit of any person, either with or without considera- 
 tion, in any contingency, in any " little go," or to pub- 
 lish any proposal for any such purpose. 
 
 The attention of the legislature was next directed 
 against "advertising foreign and other illegal lotteries," 
 and in 1836 an Act was passed which prohibited the 
 "printing or publishing any advertisement or other 
 notice of any foreign lottery, or any lottery not autho- 
 rized by Act of Parliament, or from advertising the sale 
 of any ticket or chance in such lottery, or in any 
 manner to advertise such lottery ticket or chance." 
 
 In the year 1823, public lotteries were abolished by 
 the 19th section of the statute 4 Geo. IV. c. 60, and 
 the only form of lottery since legalized by statute is
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 
 
 69 
 
 that connected with art unions. By the statute 9 & 10 
 Yict. c. 48, voluntary associations formed for the purpose Conditions of 
 of distributing works of art by lot were legalized, pro- le s ali ty- 
 vided that the incorporation of such association be 
 pursuant to a royal charter in that behalf obtained, 
 and that approval of the instrument whereunder the 
 association is incorporated, and of its rules and regula- 
 tions, be obtained from the Privy Council. 
 
 The statute relating to " little goes " is the one of 
 the widest extent, and many of the others which were 
 intimately connected with public lotteries are practically 
 obsolete. The first of the series might have been con- 
 strued so as to have been very wide reaching, but the 
 subsequent statutes indicate that a narrower construc- 
 tion must have been placed on it. Sweepstakes, how- 
 ever, have been held to be within its terms, though such 
 a form of lottery is somewhat far removed from the 
 lotteries established pursuant to letters patent. In a 
 subsequent chapter the actual offences prescribed in 
 the Acts will be dissected. In the pages following the 
 cases cited will illustrate what transactions have been 
 held to be lotteries and what not. 
 
 Both Webster and Johnson, in their dictionaries, Lottery 
 define a lottery "as a distribution of prizes by lot or 
 chance," and such definition has been held to be correct 
 for the purposes of construing the Lottery Acts(^). 
 The distribution of the prizes must not be determined 
 by judgment or skill, but by mere chance. Whilst the 
 chance may commonly be determined by the use of 
 dice, lots, cards, balls, or numbers or figures, yet it is 
 not essential to a lottery for any such physical means to 
 
 (e) Taylor v. Smetten, 11 Q. B. D. 207 ; 52 L. J. M. 0. 101 ; 
 48 J. P. 36 ; Barclay v. Pearson, (1893) 2 Oh. 154 ; 62 L. J. Ch. 
 636 ; 68 L. T. 709 ; 42 W. E. 74 ; 3 E. 388.
 
 70 THE LAW OF GAMBLING. 
 
 be used ; it suffices for the chance to be determined by 
 mere arbitrary unfettered choice, exercised either before 
 or after the lottery is opened to the adventurers (g). 
 
 Lotteries, two Lotteries so defined may for convenience be divided 
 into two classes : first, those where the adventurers 
 create by their subscriptions the whole fund which, with 
 or without deduction, is to be divided as prizes between 
 them according to the determination of chance ; secondly, 
 those where the adventurers purchase the chances of 
 prizes in a fund already put aside, or purported to be 
 put aside, for the purpose of distribution by way of 
 chance as prizes. 
 
 Sweepstakes. As touching the first class, the law has been discussed 
 
 Allport v. 
 
 Nutt, in the case of Allport v. Nutt (h). Here certain members 
 
 subscribed I/, each to the defendant, the secretary of 
 their club, under the following rules ; namely, that the 
 subscriber whose name should be drawn out of a box 
 next after the name drawn out of another box of the 
 horse placed first in the race, should be entitled to 
 receive from the defendant the sum of 100/. This 
 transaction was held to be within the prohibition of the 
 & Lottery Acts, 10 & 11 Will. III. c. 17, and 42 Greo. 
 
 c. i7;42Geo. c. 119. And in another case, Hearing v. Hillings (i), 
 ' where the plaintiff sought to recover the "sum of 
 13 6s. for money received by the defendant as treasurer 
 of a club for the use of the plaintiff as the drawer of the 
 second horse in the Derby Stakes," the Court arrived 
 at the same conclusion. Gatty v. Field (k) is another 
 
 (g] Barclay v. Pearson, (1893) 2 Gh. 154; 62 L. J. Ch. 636; 68 
 L. T. 709 ; 42 W. E. 74 ; 3 E. 388. 
 
 (A) Allport v. Nutt, 1 C. B. 974; 3 D. & L. 233 ; 14 L. J. C. P. 
 272 ; 9 Jur. 900. 
 
 (t) Hearing v. Hillings, 14 M. & W. 711 ; 15 L. J. Ex. 168. 
 
 (*) Gatty v. Field, 9 Q. B. 431 ; 15 L. J. Q. B. 408 ; 10 Jur. 980.
 
 GAMES OF CHANCE STATUTOEY ENACTMENTS. 71 
 
 very similar case. A number of 15s. subscriptions were 
 deposited in the hands of a treasurer before the running 
 of a horse race ; the names of the subscribers were 
 written on one set of cards, and the names of the horses 
 on another, and each set was placed in a separate box. 
 The cards were then drawn out alternately, as chance 
 directed, and each subscriber was considered as holding 
 the horse the name of which came out next before the 
 drawing of his own name. The holders thereupon 
 became entitled to prizes varying from 241. downwards, 
 according as the horses they held came in first, second, 
 or later. This transaction was illegal. 
 
 In the more recent case of Barclay v. Pearson (/), The missing 
 the defendant inserted a notice in his paper, invit- petition. 
 ing the public to subscribe, in sums of Is. each, to a Barclay \. 
 fund which he undertook to divide equally amongst 
 such of the contributors as should correctly guess a 
 word which was omitted from a given sentence con- 
 tained in his paper. He further stated that the miss- 
 ing word was in the hands of a chartered accountant, 
 inclosed in a sealed envelope. It was not contended 
 that the missing word was the most fitting wherewith 
 to complete the sentence. Stirling, J., held that the 
 competition constituted a lottery within the meaning 
 of 42 Geo. III. c. 119 ; for the selection of the word 
 was entirely a matter of chance. The fact that no 
 physical lot, ejmdem generis with dice, balls, cards, 
 numbers, or figures was used, was held to constitute 
 a formal, and not a substantial, distinction : the arbi- 
 trary unfettered choice of the editor in selecting the 
 word was an equivalent. 
 
 The second class of lotteries, where the adventurer 
 
 (0 Barclay v. Pearson, (1893) 2 Oh. 154; 62 L. J. Oh. 636; 
 68 L. T. 709 ; 42 W. E. 74 ; 3 E. 388.
 
 72 THE LAW OF GAMBLING. 
 
 purchases the chance of a prize in a fund already con- 
 stituted, is illustrated in several cases. In Morris v. 
 Blackman (m), the programme of an entertainment 
 stated that at the conclusion " the proprietor would 
 distribute amongst his audience a shower of gold and 
 silver treasures on a scale utterly without parallel, 
 besides a shower of smaller presents, all of which would 
 be divided amongst the audience, and impartially given 
 away." The public were admitted on purchasing 
 tickets, which were not numbered, but the seats on 
 which the audience sat were numbered, and at the 
 conclusion of the entertainment the proprietor called 
 out the number on a seat, and delivered one of the 
 articles to the person occupying it, and in that way 
 distributed all the articles amongst the audience. 
 This scheme was also held to constitute a lottery 
 within the meaning of 42 Q-eo. III. c. 119, s. 2 (). 
 Eastern In another case, Reg. v. Harris (0), a watchmaker and 
 
 hawker of watches announced that he would hold an 
 " eastern bazaar," to be conducted according to art 
 union principles, in which there were to be 5,000 tickets 
 sold at Is. each, and bonuses to the amount of 250/. 
 were to be distributed, the chief ones ranging between 
 12/. and 2, and others to consist of "geese, ducks, 
 hares, rabbits, &c.," and so arranged that every sub- 
 scriber obtained something. Everyone who paid Is. 
 obtained a ticket with a number on it, referring to a 
 book from which the holder was informed of the bonus 
 he had obtained. It was held by M. Smith, J., that, 
 whether the full value of the Is. was or was not received 
 
 (m) Morris v. Blackman, 2 H. & 0. 912; 10 Jur. N. S. 520; 
 28 J. P. 199. 
 
 (n) See also Roddy v. Stanley, 5 Ir. Jur. 10. 
 (o) Beg. v. Harris, 10 Cox, 0. C. 352,
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 73 
 
 by the subscribers, the case came within the mischief of 
 the Acts, inasmuch as the subscribers were induced to 
 part with their money in the hope of obtaining not only 
 their alleged shilling's worth, but something of much 
 greater value, the right to which was to be ascertained 
 by chance. 
 
 In Taylor v. Smetten (p), the appellant had been con- Packets of 
 victed under the statute relating to little goes (q) . He prizes? 
 sold 1 Ib. packets of tea for 2s. Qd. Each packet con- 
 tained a coupon entitling the purchaser to some prize. 
 The prizes were distributed according to the coupons ; 
 the tea was good, and was stated to be worth the money 
 paid for it. The justices, inasmuch as each purchaser 
 obtained a prize, with regard to which there was a 
 chance or uncertainty, held the transaction to be a 
 lottery. In the Divisional Court this decision was upheld 
 on the grounds that the purchaser exercised no choice ; 
 what he obtained was the result of mere chance or acci- 
 dent. It was pointed out that 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, no one could have doubted that 
 these would have been lotteries. Hence it seemed 
 utterly immaterial whether a specific article was or was 
 not conjoined with the chance and as the subject-matter 
 of the sale. 
 
 In the case of Hunt v. Williams (r), which was similar 
 
 (p) Taylor v. Smetten, 11 Q. B. D. 207 ; 52 L. J. M. C. 101 ; 
 48 J. P. 36. 
 
 (q) 42 Geo. in. c. 119, s. 2. 
 (r) Hunt v. Williams, 52 J. P. 821.
 
 74 THE LA.W OF GAMBLING. 
 
 on the facts to the last-mentioned case save in one 
 respect, an attempt had been made to evade the Lottery 
 Acts by non-advertising the existence of prizes. But it 
 was held that the advertising was not of the essence, 
 and that the transaction was none the less a lottery (s) . 
 Schemes in- As distinguished from the cases in which the trans- 
 act lotteries, actions have been held to be lotteries, there are others 
 in which the contention has been unsuccessful. In 
 Caminada v. Hulton (t), the transaction impeached arose 
 out of the publication of a sporting newspaper at the 
 price of Id., on the last page of which was a coupon 
 with the names of some sis coming horse races ; pecu- 
 niary prizes were offered to any purchaser who filled up 
 one coupon with the names of six, five, or four winners, 
 and returned the coupon to the office within a limited 
 time under the conditions specified. It was held that 
 there was no contrivance or device to obtain money by 
 chance, or by anything analogous to chance, and that 
 the transaction nowhere approached the description of a 
 lottery. This case is distinguishable from Barclay v. 
 Pearson in its essence, because in the. latter case there 
 was no room for the exercise of skill ; it was chance 
 only. 
 
 The case of Caminada v. Hulton was recently relied 
 on in a summons against the proprietors of the paper 
 called Turf Life (u). In that newspaper there was an 
 advertisement of a coupon competition, a prize of 100/. 
 being offered to the person who should place the first, 
 second, third, and fourth horses in the Grand National. 
 The conditions of the competition were set forth on the 
 
 (s) See also Toudan v. Crookes, 22 J. P. 287. 
 (*) Caminada v. Hulton, 60 L. J. M. 0. 116; 64 L. T. N. S. 
 572 ; 39 W. E. 540 ; 55 J. P. 727. 
 () Mansion House, April, 1895.
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 75 
 
 coupons, of which there were twenty-five. The condi- 
 tions were (inter alia} : " 2. The No. 1 coupon in the 
 ahove column can be used free of charge. This coupon 
 can be filled up, cut out, and despatched to us, and will 
 be accepted for competition without any fee or charge 
 being sent with it. 3. If, however, the remaining 
 twenty-four blank coupons are used, one penny stamp 
 must be sent with each of these coupons so used. 4. The 
 extra coupons are included in each issue for those 
 who experience a difficulty in obtaining Turf Life. . . . 
 5. There is no limitation to the number of coupons to 
 be sent in. 6. Predictions can also be made on plain 
 paper on the same terms, but one free coupon must 
 accompany the same, to show that the competitor is a 
 subscriber to Turf Life. 7. There is no compulsion to 
 use any more than the one free coupon if the competitor 
 desires to confine himself to one attempt." This com- 
 petition, being for the correct prediction of the first four 
 horses in a given race, gave an opportunity for the con- 
 tention that, as to the fourth horse, it was a question of 
 chance and not of skill, as the fourth place was not 
 ridden for on the merits. This contention succeeded in 
 the first instance ; but, on a case stated, the Divisional 
 Court reversed the decision, holding that a horse race 
 was not a matter of chance, and that consequently 
 there was no device or contrivance to obtain money by 
 chance (x). 
 
 On the other hand, the distribution of the property Division 
 may be by chance, and yet the transaction may not be parceners. 
 a lottery ; for that which is distributed may not be of 
 the nature of a prize. A well-established method at 
 common law of dividing land amongst coparceners is 
 
 (x) Stoddart and others v. Sagao, 35 T. L. E. vol. xi. p. 568.
 
 76 THE LAW OF GAMBLING. 
 
 described in Bacon's Abridgment, sub tit. Coparceners : 
 "There is another manner of voluntary partition or 
 allotment, and that is when after partition each division 
 is written in a little scroll, and that is covered with wax 
 like a little ball, so as the scroll cannot be seen, and 
 then all the balls are put into a hat, to be kept in the 
 hands of an indifferent person, after which the eldest 
 daughter draws first, and then the rest according to their 
 seniority." It will be remembered that section 11 of 
 the statute 12 Greo. II. c. 28 (dealing, inter alia, with 
 lotteries under the guise of sales of lands, &c.), ex- 
 pressly preserved this mode of allotment or partition by 
 lots. Wherever persons are really and truly seised as 
 part owners, joint tenants, or tenants in common, of 
 any manors, honours, royalties, lands, tenements, advow- 
 sons, presentations, rents, services, and hereditaments, 
 they may still make partition by lot, notwithstanding 
 anything in the Act. The question whether a certain 
 transaction fell within the mischief of the Lottery Acts 
 or within the last-mentioned section was raised, though 
 in the result it became unnecessary to decide the point, 
 in the case of O'Connor v. Bradshaw (y). There a 
 company consisting of a large number of subscribers, 
 who contributed small sums of money, was formed for 
 the purpose of buying land, erecting dwelling-houses 
 thereon, and allotting the same to subscribers by ballot. 
 The company was illegal otherwise by virtue of some 
 of its operations infringing the Bank Acts. Baron 
 Parke, in his judgment, after pointing out that the 
 point was not necessary for decision, stated that he 
 could not bring himself to think the scheme illegal 
 within the Lottery Acts. His view, as suggested by a 
 
 (y} O'Connor v. Bradshaw, 5 Ex. 882; 20 L. J. Ex. 26.
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 77 
 
 remark in the course of the argument, was that members 
 were co-owners and were legally determining their 
 priorities; he put this case, "Suppose a number of 
 persons were to buy a large collection of pictures, some 
 of which far exceeded the others in value, might it not 
 be determined who shall have the first choice?" But 
 Pollock, C.B., thought it questionable whether land 
 could be purchased with the object of dividing it under 
 the section last mentioned. It is submitted that land 
 could not be purchased for the purpose of and with the 
 intent so to divide it ; the owners would have become 
 seised, but with an intent contrary to the statute. 
 Again, with regard to the illustration of the pictures, if 
 the transaction were a mere disguise to enable the 
 adventurers to divide a fund of money subscribed by 
 themselves unequally amongst themselves, then the 
 disguise would clearly be ineffectual and the substance 
 of the transaction would remain. It may be noticed 
 that section 11 of the statute only refers to the partition 
 of real property, and that the earlier statute dealing 
 with the sales of fans, gloves, and other things, contains 
 no such reservation (z). But this difference is not con- 
 clusive. In the case of Sykes v. Beadon (a), a " govern- 
 ment securities trust," or combination of more than 
 twenty persons, was formed on the principle of investing 
 subscriptions of the members and dividing the capital 
 fund and the profits among themselves by annual 
 drawings by lot. The first question in the case, and 
 the only one argued at the bar, was whether the com- 
 bination in question was " an association for the acqui- 
 sition of gain " within the meaning of section 4 of the 
 
 (z) 10 Anne, c. 26, s. 108. 
 
 (a) Sykee v. Beadon, 11 Ch. Div. 170; 48 L. J. Oh. 522; 27 
 W. E. 464 ; 40 L. T. 243.
 
 THE LAW OF GAMBLING. 
 
 Companies Act, 1862. Jessel, M.R,., held that it was. 
 But its present importance arises from the fact that 
 during the argument advanced to show that the associa- 
 tion was not formed for the acquisition of gain within 
 the meaning of the Companies Act, the Master of the 
 Rolls expressed a doubt whether or not it was not 
 within the prohibition of the Lottery Acts; and he 
 distinguished building societies on the ground that 
 they are loan societies, wherein it is a case of loans to 
 be returned. In his judgment the Master of the Rolls 
 said, " I do not intend to decide the point, as it was not 
 argued ; but stating my opinion as far as I ought to 
 state it, this is a lottery, and is illegal under the 
 Lottery Acts. The holders of certificates are persons 
 who subscribe money to be invested in funds which 
 are to be divided amongst them by lot, and divided 
 unequally. ... It depends on a chance which gets the 
 greater or lesser advantage. It is, therefore, a subscrip- 
 tion 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, then, at all events, 
 to my mind it is very difficult to understand what a 
 lottery is." Beyond doubt, if the matter had been 
 argued, it would have been pressed on the learned 
 judge that the subscriptions were made for the purpose 
 of earning profits by the investments, though not within 
 section 4 of the Companies Act, 1862, and that the 
 subsequent and distinct transaction, the division by lot, 
 was but ancillary to the main purpose of the scheme, 
 and adopted merely because convenient. In the case 
 of Wattingford v. The Mutual Society (b),. it was held 
 that the defendant society, which was constituted for 
 
 (6) Wattingford v. The Mutual Society, 5 App. Gas. 685 ; 50 
 L. J. Q. B. 49 ; 43 L. T. 258 ; 29 W. E. 81.
 
 V 
 
 GAMES OF CHANCE STATUTORY ENACTMENTS. 79 
 
 the purpose of accumulating capital by means of monthly 
 subscriptions from its members, and for making advances 
 thereout to the members in accordance in part with a 
 process of periodical drawings, was not within the mis- 
 chief of the Lottery Acts. The right to receive an 
 advance was determined by lot, and, doubtless, was a 
 right of some pecuniary value ; yet Lord Selborne, after 
 full argument and reference to the terms of the par- 
 ticular Lottery Acts stated, " One of those Acts plainly, 
 on the face of its recitals (the enacting part not depart- 
 ing from those 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. No case, therefore, in my judgment, was 
 made, worthy of a moment's consideration, in support of 
 the contention that these were illegal transactions within 
 the Lottery Acts." Another case, arising out of a 
 trust for investment, with ancillary provisions for draw- 
 ings by lot, is Smith v. Anderson (c), and no contention 
 was advanced that the trust was illegal on account of 
 the Lottery Acts, and the point was treated as precluded 
 from argument by the case of Wallingford v. The Mutual 
 Society. 
 
 (c) Smith v. Anderson, 15 Oh. Div. 247 ; 50 L. J. Ch. 47 ; 43 
 L. T. 336 ; 29 W. E. 22.
 
 THE LAW OF GAMBLING. 
 
 Effect of the 
 statute of 
 Anne on 
 securities. 
 
 Notes and 
 bills under 
 this statute. 
 
 CHAPTEE V. 
 
 PART I. 
 
 Gaming Securities under the Statutes 16 Car, II. c. 7, 
 9 Anne, c. 14. 
 
 IN Chapter III., Section B., the scope of the above- 
 mentioned statutes of Charles and Anne was indicated, 
 but their effect on gaming securities was purposely 
 omitted, in order that such discussion might afford 
 a foundation for the examination of the statute of 
 Will. IV. and the present law. 
 
 The statute of Anne rendered null and void for all 
 intents and purposes any note, bill, bond, judgment, 
 mortgage, or other security given in respect of money 
 won by gaming, or by betting on those who played, or 
 for money knowingly lent for such gaming or betting, 
 or lent at the time and place of such play to anyone so 
 gaming or betting. 
 
 The statute, in rendering such notes and bills null 
 and void to all intents and purposes, destroyed their 
 negotiability, and inflicted hardships on bond fide holders 
 for value. The lender or winner who became promisee 
 on the note, or the payee in whose favour the bill was 
 drawn, took the security for what it was worth ; but a 
 third person, without notice of the origin, might, in the 
 ordinary course of commercial dealing, become an in- 
 dorsee for value, and subsequently find that he could 
 not recover on such note or bill. The innocent indorsee
 
 GAMING SECURITIES UNDER OLD STATUTES. 
 
 had only one remedy, and that was against his indorser 
 on the indorsement, which is equivalent to an assertion 
 of the validity of the security. 
 
 In the case of Hussey v. Jacobs (a), the plaintiff was Cases illus- 
 the payee of a bill of exchange, of which the defendant foregoing. 
 was the acceptor ; the bill was drawn by Lord Chandois 
 in payment of 120 guineas lost by him to the plaintiff 
 at gaming. In the argument for the plaintiff it was 
 contended, that the defendant had undertaken to pay 
 the sum in demand upon a subsequent contract made 
 by himself, and that, therefore, his undertaking was 
 neither within the intent nor the letter of the statute. 
 But it was held that the defence was as available for 
 the defendant as for Lord Chandois in an action brought 
 by the plaintiff, who was privy to the first wrong, and 
 a party to the illegal and tortuous winning ; and Lord 
 Holt, who decided the case, added that if the plaintiff 
 had assigned the bill to a stranger bond fide upon good 
 consideration, he had not been within the statute, for 
 he was not privy to the tort, but an honest creditor, and 
 to such a stranger the acceptor would be liable. Ac- 
 cording, then, to this obiter dictum of Lord Holt, the 
 bill or note would be negotiable in spite of the statutes. 
 
 However, the exact point was raised in the case of Bowyer v. 
 Boicyer v. Hampton (>), and the dictum of Lord Holt 
 was disapproved of and the contrary decided ; in fact, 
 Lee, C. J., said he had seen a report wherein notice was 
 taken that all the learned part of the bar wondered at 
 . it. The plaintiff Bowyer was the indorsee of several 
 promissory notes which had been given by the defendant 
 Bampton to one J. C. for the repayment of money 
 
 (a) Husaey v. Jacobs, 1 Corny. 4 ; 1 Salt. 344 ; 5 Mod. 170 
 (Gas. 85). 
 
 (b) Bowyer v. Hampton, Strang. llooa. 
 
 G. O
 
 82 THE LAW OF GAMBLING. 
 
 knowingly advanced to the defendant to game with at 
 dice, and which had been subsequently indorsed by 
 J. 0. to the plaintiff for a full and valuable considera- 
 tion, and without notice of the gaming. The Court 
 held that the plaintiff could not maintain his action 
 against the defendant on the notes ; for if he could, 
 then the notes would be of some use to the lender, 
 seeing that he could therewith pay his own debts : the 
 Act would be evaded, as it is a matter of much difficulty 
 to prove that an indorsee had notice. It was pointed 
 out that, whilst the decision would involve an innocent 
 indorsee in some difficulty, yet the inconveniences would 
 not overbalance those on the other side ; and, moreover, 
 the indorsee would not be left without remedy, for he 
 could sue the indorser on his indorsement. The position 
 of the innocent indorsee was in question in the case of 
 Loice v. Waller (c), where the bills were usurious. Fol- 
 lowing Bowyer v. Hampton, it was held that the indorsee 
 could not maintain his action against the acceptor, 
 though, similarly there, the indorsee had a right of 
 action against his indorser. The case of Robinson v. 
 Bland (d] is another instance of the failure of a winner, 
 who became the drawer and the payee of a bill, to 
 recover from the loser, who was the acceptor, or,jnore 
 accurately, from the acceptor's personal representative. 
 Edwards-?. In the case of Edwards v. Dick(e), the plaintiff, as 
 
 indorsee, brought an assumpsit against the defendant as 
 drawer and indorser of a bill of exchange. The bill was 
 drawn by the defendant upon and accepted by Lord E. 
 in discharge of a debt for money won at play, but the 
 plaintiff received it from the drawer in payment of a 
 
 (c) Lowe v. Waller, 2 Doug. 735. 
 
 (d) Robinson v. Bland, 2 Burr. 1077, and ante, p. 54. 
 
 (e) Edwards v. Dick, 4 B. & Aid. 212.
 
 GAMING SECUEITIES UNDER OLD STATUTES. 83 
 
 bond fide debt. For the defendant it was argued that 
 the bill was null and void, and that the position was the 
 same as if no bill had ever existed. Bayley, J., said : 
 " It would be most unjust to allow this defence to a 
 defendant, who, having indorsed over, and thereby 
 asserted the bill to be valid, afterwards, when called 
 upon to pay it, says that it is invalid, and that in con- 
 sequence of fraudulent conduct to which he himself has 
 been a party." Thus the defendant could not escape 
 his liability as indorser on the ground that he, the 
 winner, was also the drawer. There are expressions in 
 the judgments which indicate that qua drawer he might 
 have been successfully sued by a subsequent holder, 
 even though, as drawer, he had no remedy or right 
 against the loser, the acceptor of the bill. 
 
 In the later case of Shilleto v. Theed(f], where the Shilleto v. 
 
 Theed. 
 defendant had lost a wager on the St. Leger, and had 
 
 accepted a bill drawn on him by the winner, from whom, 
 through a series of indorsements, it ultimately reached 
 the plaintiff, it was scarcely contended that the plaintiff, 
 claiming through the winner, could recover from the ac- 
 ceptor. But the contention was attempted that the horse 
 race on which the bet was made, having been rendered 
 valid by the statute 18 Greo. II. c. 34, the bet itself, as a 
 collateral and incidental consequence, must be valid and 
 create legal obligations. By the judgment it was de- 
 cided that the legalizing of horse races did not interfere 
 with the operation of the statute of Anne, and that the 
 action on this bill against the acceptor could not be 
 maintained. 
 
 In Boulton v. Coghlan (g), the defendant accepted a JSoultonv. 
 
 Coghlan. 
 
 (/) Shilleto v. Theed, 7 Bing. 405. 
 
 (<j) Boulton v. Coghlan, 1 Bing. N. C. 640 ; 1 Hodges, 145 ; 1 
 
 Scott, 588.
 
 .84 
 
 THE LAW OF GAMBLING. 
 
 A second 
 security sub- 
 stituted for 
 the first. 
 
 Judgments 
 within the 
 statutes. 
 
 Bonds under 
 the statutes. 
 
 bill drawn on him for payment of losses at play, and 
 such bill was indorsed to one Knight. The defendant 
 
 - and Knight, before the bill matured, agreed to substi- 
 tute therefor a promissory note, which Knight subse- 
 quently indorsed to the plaintiff. The plaintiff sued 
 the defendant on this note. It was proved that the 
 note arose out of a gambling transaction ; but the de- 
 fendant ultimately failed on the ground that he had not 
 pleaded the two agreements, and was unable to sub- 
 stantiate the plea as set up by him. The case does not 
 decide that he would have been liable if the two agree- 
 ments had been duly pleaded. In the case of Baker v. 
 Williams (h), a bill was substituted for the original one ; 
 in Graves v. Houlditch (), a second bill was substituted 
 for the first ; and in Wynne v. Callander (&), French 
 bills were substituted for the original English ones : in 
 each instance the substituted bill was held to be void. 
 
 The judgments referred to in the statute were volun- 
 tary judgments given by the debtor to the creditor by 
 way of security, and did not include adverse judgments 
 obtained even in default of appearance, and even when 
 the plaintiff was the winner or lender (/). 
 
 Bonds not being negotiable instruments, and being 
 at law unassignable, any assignee of the bond knew 
 that he was bound by the actual state of the indebted- 
 
 ness between the obligor and the obligee of the bond. 
 It was but a particular case in the state of such in- 
 debtedness that there should be no legal obligation 
 between the obligor and the obligee. A bond within 
 the statute was null and void in the hands of any 
 
 (h) Bakery. Williams, note to Rawden v. Shadwell, 1 Amb. 268. 
 (i) Graves v. ffoulditch, 2 Price, 147. 
 . (&) Wynne v. Callander, 1 Buss. 293. 
 (Z) Lane v. Chapman, 11 A. & E. 966, 980.
 
 GAMING SECURITIES UNDER OLD STATUTES. 85 
 
 assignee. In the case of Bucknill v. Myler, discussed 
 at length in the judgment in the case of Kenny v. 
 Browne (w), the Lord Chancellor stated that a bond to 
 secure the payment of 160 won at billiards was 
 grounded on an illicit contract, and that the obligee of 
 the bond would, without hesitation, have been restrained 
 from proceeding to levy the debt ; so also would an 
 assignee from the obligee. But the obligor of the bond 
 would be estopped from denying the truth of any repre- 
 sentation made by him to an intended assignee. 
 
 A legal mortgage consists of two elements : the one Mortgages. 
 the unassignable covenant to pay the money secured ; 
 the other the legal estate, which was, of course, assign- 
 able at law. The question arose as to whether the un- 
 assignability of the covenant or the assignability of the 
 estate determined the character of a mortgage as a 
 transferable instrument. In Matthews v. Wallwyn (n), 
 it is stated in the judgment as follows : " It is true 
 there is a legal estate or term ; but it must be apparent 
 upon the face of the title that it is not an absolute con- 
 veyance of the term or legal estate, but as a security 
 for a debt, and the real transaction is an assignment of 
 a debt from A. to B. ; that debt collaterally secured by 
 a charge upon a real estate. The debt, therefore, is the 
 principal thing ; and it is obvious that, if an action was 
 brought upon the bond in the name of the mortgagee, 
 as it must be, the mortgagor shall pay no more than 
 what is really due upon the bond ; if an action of cove- 
 nant was brought by the covenantee, the account must 
 be settled in that action." The unassignability of the The assign- 
 debt, as distinguished from the assignability of the legal mortgage is 
 estate, is the dominant characteristic. fhe debt* ^ 
 
 (m) Kenny v. Browne, 3 Eidgway's Parl. Rep. 514. 
 (n] Matthews v. Wallwyn, 4 Ves. 118,
 
 86 THE LAW OF GAMBLING. 
 
 Effect of The statute of Anne rendered mortgages which were 
 
 mortgages. within its scope null and void ; hence the mortgagee 
 could take no benefit, although, as has been seen (o), the 
 mortgagor was penalised by being divested of the pro- 
 perty which he had attempted to mortgage. In Baker 
 v. Williams (p), the defendant had won from the plain- 
 tiff 161/. at hazard, and the plaintiff had given the 
 defendant a promissory note for that amount. Subse- 
 quently the defendant became dissatisfied with his se- 
 curity, and in substitution therefor the plaintiff executed 
 a mortgage of certain leasehold premises to secure to the 
 defendant the sum of 126/., and gave him a promissory 
 note for the balance. The defendant indorsed over the 
 latter note to his brother, who had no knowledge of its 
 origin. In the action the plaintiff sought to have the 
 mortgaged leaseholds reconveyed to him, and the title 
 deeds relating to same delivered up, and also to have 
 the note cancelled and delivered up. He succeeded as 
 to the note ; but, whilst the mortgagee derived no benefit 
 from the security, it was held that the plaintiff was not 
 entitled to the reassignment, as under the statute his 
 next-of-kin had become entitled thereto. Similarly, in 
 Fleetwood v. Jamen and Mennill (q), where there had been 
 a mortgage of freeholds, the heir-at-law had become 
 entitled. Thus, then, such mortgages were, as between 
 the mortgagor and the mortgagee, void ab inifio, and, as 
 the mortgagee acquired no right thereunder, he could 
 assign no right to a third person. The position of the 
 assignee of such a security is illustrated by the case of 
 
 (o) Ante, p. 48. 
 
 (p) Baker v. Williams, at the Eolls, 11 Geo. I. ; see note to 
 Rawden v. Shadwell, 1 Amb. 268. 
 (j) Fleetwood v. Jansen, 2 Atk. 467.
 
 GAMING SECURITIES UNDER OLD STATUTES. 
 
 Parker v. Clarke (r). The plaintiff had given a mort- Parker v. 
 
 Clarke. 
 gage to a person, who assigned it with notice to the 
 
 defendant Clarke, by whom it was assigned, without 
 notice of any defect, to Phillips. The plaintiff had 
 executed the mortgage without receiving any present 
 consideration, and in contemplation of a future consi- 
 deration, which totally failed. The Master of the Rolls 
 (Lord Romilly) held the deed to be void, being a mort- 
 gage deed for which no consideration was given. As 
 against Clarke, who was the first assignee with notice, 
 the deed was cancelled. "With respect to Phillips, who 
 took without notice, the Master of the Rolls said : " I 
 am of opinion that he could only take what Clarke could 
 give him, and that he cannot stand in a better position 
 than Clarke himself. Phillips, therefore, must deliver 
 up the deeds, and his only remedy will be against 
 Clarke." Other instances where the position of a trans- 
 feree, without notice and for value, of a void security 
 has been determined will be found in cases where there 
 has been personation and forgery (s). 
 
 The case of Matthews v. Wallwyn (cited supra) shows 
 that, where the mortgage security is a valid one, the 
 transferee, who in the absence of the mortgagor takes 
 a transfer, is bound by the actual state of the accounts 
 between the mortgagor and the mortgagee (t}> Hence 
 it follows that, as was stated in the same case, " persons 
 most conversant in conveyancing hold it extremely unfit 
 
 (r} Parker v. Clarke, 30 Bev. 54 ; 7 Jur. N. S. 1267 ; 9 W. E. 
 877. 
 
 (a) Ogilvie v. Jeaffreson, 2 Giff. 353 ; In re Cooper, Cooper v. 
 Vesey, 20 Ch. D. 611 ; 51 L. J. Ch. 862 ; 47 L. T. 89 ; 30 W. K. 
 648. 
 
 (*) See also Williams v. Sorrell, 4 Ves. 389; JBradwell v. 
 Catchpole, in note to Walker v. Symonds, 3 Sw. p. 1.
 
 8S THE LAW OF GAMBLING. 
 
 and very rash, and a very indifferent security, to take 
 an assignment without the privity of the mortgagor as 
 to the sum really due . . . but no conveyancer of es- 
 tablished practice would recommend it as a good title to 
 take an assignment of a mortgage without making the 
 mortgagor a party and being satisfied that the money 
 was really due." In those instances where the mort- 
 gagor was not a party to the transfer, a covenant was 
 commonly taken from the transferor that the debt in 
 question was justly due and owing. 
 
 The operation of the statute of Anne, in divesting 
 the property from the mortgagor, has been entirely 
 repealed (u), and is of interest now solely as a legal 
 curiosity. But the foregoing paragraphs will exemplify 
 the incidents of a null and void mortgage security. The 
 same results apply to equitable charges, where there is 
 no conveyance of the legal estate. 
 
 Estoppel, "With regard to bonds and mortgages, the hardship 
 
 actioi/of. which might be inflicted on innocent third persons was 
 much diminished by the beneficial operation of the doc- 
 trine of estoppel. The obligor of a bond, who represents 
 to an intended assignee that the money is due and justly 
 owing, would not be allowed, as against such assignee, 
 to perpetrate a gross fraud by subsequently setting up 
 the statute, and denying the truth of his own represen- 
 tation. It would, however, seem that whilst the divest- 
 ing operation of the statute of Anne was in force, the 
 mortgagor could not raise an estoppel against his heir- 
 at-law or next-of-kin ; but such divesting operation 
 having been abolished, a mortgagor can estop himself, 
 even as the obligor of a bond, and it is in order to raise 
 such estoppel that he is made a party to the transfer. 
 
 () 5 & 6 Will. IV. c. 41, s. 3,
 
 GAMING SECURITIES UNDER OLD STATUTES. 89 
 
 In an old case, briefly reported (x), A. was justly 
 indebted to B. in the sum of 1007. ; C. was, on a 
 gambling transaction, indebted to A. in the sum of 
 100/. By arrangement between A., B., and C., A. was 
 released by B., and C. was released by A., on C. giving 
 a bond for 100/. to B. B. did not know that C.'s in- 
 debtedness to A. arose out of a gambling transaction. 
 Subsequently C. endeavoured, as against B. in respect 
 of the bond, to set up the defence of gambling, but B. 
 recovered on the bond. 
 
 The ground of estoppel is clearly indicated in the 
 case of Bucknell v. Myler (y), the debtor prior to the 
 assignment of a bond and a judgment in answer to 
 the inquiries of the intended assignee, stated that the 
 debt was fair and the security safe, and by conduct 
 subsequent to the assignment he confirmed his earlier 
 representations; on those grounds the debtor failed 
 when he sought relief in a Court of Equity. Similarly 
 in Damson v. Franklin (z), in answer to inquiry of the 
 intended assignee, the debtor answered, " Yes, that is 
 my handwriting ; I owe Mr. S. the money, and have no 
 objection to make to it ; it will be paid when it is due," 
 and he was in consequence deprived of the benefit of the 
 statute (a). 
 
 The cases show that the usual relief sought by a Relief of the 
 person who had given a null and void security was null and void 
 to apply for a declaration to that effect, and for an 8< 
 
 (x) Anonymous, 2 Mod. 279 (Case 160) ; Ellis v. Warner, Cro. 
 Jac. 32, pi. 6, Yelverton, 47. 
 
 (y) Cited in Kenny v. Browne, 3 Ridgway's Par. Rep. 514. 
 
 (z) Davison v. Franklin, 1 B. & Ad. 142. 
 
 (a) Hawker v. Hallewell, 3 Sm. & G. 194 ; 2 Jur. N. S. 537, 
 affirmed on appeal 25 L. J. Ch. 558 ; 2 Jur. N. S. 794 ; Mangles 
 v. Dixon, 1 M. & G. 437 ; Bickertomr. Walker, 31 Ch. Div. 151 ; 55 
 L. J. Ch. 227 ; 53 L. T. 731 ; 34 W. E. 141.
 
 THE LAW OP GAMBLING. 
 
 order for cancellation. In those cases where payments 
 had been made pursuant to the instrument, the Court 
 would further order repayment of the moneys. Thus, 
 in Rawden v. Shadicell (b) , Lord Hardwicke held that 
 the bond was void, and that no payment made there- 
 under could be supported. As long as statutes were in 
 force for the protection of losers against winners, this 
 equitable relief presented no difficulty. 
 
 PART II. 
 Gaming Securities under the Statute of Will. IV. 
 
 The statute of Will. IY., which forms the subject 
 matter of this part of Chapter V., is the present law. 
 It will be seen to be a modification of the previous 
 statutes of Charles and Anne, and only to affect such 
 securities as would have been by those statutes rendered 
 null and void (c). Having regard to the subsequent 
 passing of the Act, 8 & 9 Viet. c. 109, whereunder all 
 wagering contracts are null and void (d), the curious 
 result is produced that a debt under a void contract as 
 distinguished from an illegal one may constitute an 
 illegal consideration for a security given in respect of it. 
 The statute The statute, 5 & 6 Will. IY. c. 41, intituled " An 
 Act to amend the Law relating to Securities given for 
 considerations arising out of gaming, usurious, and 
 The hardship certain other illegal transactions," after reciting the 
 remedied. statutes of Charles and of Anne in its preamble stated 
 
 (b) Rawden v. Shadwell, 1 Amb. 268. See also Turner v. 
 Warren, 2 Strang. 1079, and 1 Fonbl. Eq. bk. 1. ch. 4, sect. 6. 
 
 (c) Ante, Chap. III., pp. 46, 47. 
 
 (d) Post, Chap. YII.
 
 GAMING SECURITIES UNDER WILL. IV. 91 
 
 that securities and instruments thereby made void were 
 sometimes indorsed, transferred, assigned, or conveyed -f~ 
 to purchasers or other persons for valuable consideration, 
 without notice of the original consideration for which l_x- 
 such securities and instruments were given, and the 
 avoidance of such securities or instruments in the hands 
 of such purchasers or other persons was often attended 
 with great hardship and injustice, wherefore by way of 
 remedy it enacted " That so much of the said Acts of 
 16 Car. II. and 9 Anne (inter alia) as enacts that any 
 note, bill, or mortgage shall be absolutely void, shall bej 
 and the same is hereby repealed, but nevertheless eve 
 note, bill, or mortgage, which if this Act had not beeif 
 passed would by virtue of the last several hereinbeforfi 
 mentioned Acts, or any of them, have been absolutely 
 void, shall be deemed and taken to have been made, 
 drawn, accepted, given, or executed for an illegal consi- 
 deration, and the said several acts shall have the same but given for 
 force and effect which they would respectively have had ^deration 1 ." 
 \ if instead of enacting that any such note, bill, or mort- 
 ' gage should be absolutely void, such Acts had respec- 
 tively provided that every such note, bill, or mortgage 
 should be deemed and taken to have been made, drawn, 
 accepted, given, or executed for an illegal consideration. 
 Provided always that nothing herein contained shall 
 prejudice or affect any note, bill, or mortgage which 
 would have been good and valid if this Act had not 
 been passed." 
 
 By section 2 it was enacted " That in case any person 
 shall after the passing of this Act make, draw, give, or 
 execute any note, bill, or mortgage for any considera- 
 tion on account of which the same is by the hereinbefore 
 recited Acts of 16 Car. II. and 9 Anne, ... or by any Relief to 
 one or more of such Acts declared to be void, and such s ra ? tor of ., . 
 
 such securities
 
 92 
 
 THE LAW OF GAMBLING. 
 
 in respect of 
 payments 
 actually- 
 made. 
 
 Operation of 
 the statute. 
 
 i. Notes and 
 bills. 
 
 person shall actually pay to any indorsee, holder, or. 
 assignee of such note, bill, or mortgage, the amount of 
 the money thereby secured or any part thereof, such 
 money so paid shall be deemed and taken to have been 
 paid for and on account of the person to whom such 
 note, bill, or mortgage was originally given upon such 
 illegal consideration as aforesaid, and shall be deemed 
 and taken to be a debt due and owing from such last 
 named person to the person who shall so have paid such 
 money, and shall accordingly be recoverable by action 
 at law in any of His Majesty's Courts of Record." 
 
 By section 3, the latter portion of the first section of 
 the statute of 9 Anne, whereunder the forfeiture of 
 lands attempted to be mortgaged was incurred, was 
 wholly repealed. 
 
 The operation of this statute in converting bills and 
 notes, which theretofore had been null and void, into 
 instruments given for an illegal consideration is a matter 
 which presents no difficulty ; difficulties, however, will 
 be hereafter seen to arise from the inclusion of mort- 
 gages and the exclusion of bonds. 
 
 As between the immediate parties to the note or bill, 
 who were the parties to or privy to the gaming transac- 
 tion, a plea that the bill or note was given for an illegal 
 consideration is an answer to a claim on such instru- 
 ment. The defendant who sets up the illegality must 
 discharge the onus of proof ; similarly if the drawer of 
 the bill or the promissor seeks an injunction to restrain 
 the negotiation of the bill or note he must discharge the 
 same onus. If, however, the bill or note were assigned 
 to a third person for valuable consideration without 
 notice, the defence of illegality in the conception of the 
 bill or note would not prevail, nor could such a holder 
 be restrained by injunction.
 
 GAMING SECUKITIES UNDEE WILL. IV. 93 
 
 The BiUs of Exchange Act, 1882, has codified the The Bills of 
 
 J'Jxrluiliii'O 
 
 law relating to this matter, and it will be convenient Act, 1882. 
 here to set forth the material sections of the Act. 
 
 By section 29. (1.) A holder in due course is a 
 holder who has taken a bill, complete and regular 
 on the face of it under the following conditions; 
 namely 
 
 (a) That he became the holder of it before it was 
 
 overdue, and without notice that it had been 
 previously dishonoured, if such was the fact : 
 
 (b) That he took the bill in good faith and for value, 
 
 and that at the time the bill was negotiated 
 to him he had no notice of any defect in the 
 title of the persons who negotiated it. 
 
 (2.) In particular the title of a person who negotiates 
 a bill is defective within the meaning of this Act when 
 he obtained the bill, or the acceptance thereof, by fraud, 
 duress, or force and fear, or other unlawful means, or 
 for an illegal consideration, or where he negotiates it in 
 breach of faith, or under such circumstances as to amount 
 to fraud. 
 
 (3.) A holder (whether for value or not), who derives 
 his title to a bill through a holder in due course, and 
 who is not himself a party to any fraud or irregularity 
 affecting it, has all the rights of that holder in due 
 course, as regards the acceptor and all parties to the 
 bill prior to that holder. 
 
 By section 30. (1.) Every party whose signature 
 appears on a bill is prima facie deemed to have become 
 a party thereto for value. 
 
 (2.) Every holder of a bill is primd facie deemed to 
 be a holder in due course; but if in an action on a bill 
 it is admitted or proved that the acceptance, issue, or 
 subsequent negotiation of the bill is affected with fraud,
 
 94 THE LAW OP GAMBLING. 
 
 duress, or force and fear, or illegality, the burden of proof 
 is shifted, unless and until the holder proves that, sub- 
 sequent to the alleged fraud or illegality, value has in 
 good faith been given for the bill. 
 
 By section 90, a thing is deemed to be done in good 
 faith in the meaning of this Act, when it is in fact done 
 honestly, whether it is done negligently or not. 
 
 It will be seen that in the Act "a holder in due 
 course" is the equivalent of a bond fide holder (e), and 
 that "any equity attaching" is a "defective title 
 within " the meaning of the Act. 
 
 In an action wherein the plaintiff seeks to restrain 
 the holder from negotiating a bill or note, or in an 
 action wherein the defendant seeks to escape liability 
 on the bill or note, the illegality must be specifically 
 pleaded (/), and must be proved by him .who alleges 
 it. As soon as there is some evidence whereon the jury 
 may reasonably find that the bill is defective owing to 
 illegality, then under section 30, sub-section (2), the 
 onus is shifted, and the owner is put to the proof 
 that value has been given in good faith and without 
 notice of the illegality (#). If the plea of illegality be 
 not traversed, the illegality will be taken to be ad- 
 mitted (h), and the burden will then be thrown on the 
 admitting party of establishing that value was given 
 honestly. Prior to the Judicature Act and the Bills of 
 Exchange Act, it was held that an admission of the 
 illegality shifted the onus of proving consideration but 
 
 (e) See sects. 54, 55. 
 
 (/) E. S. 0. Ord. XLX. r. 15. As to degree of particularity, 
 see Boulton v. Coghlan, 1 Bing. N. 0. 640 ; 1 Hodges, 145 ; 1 
 Scott, 588. 
 
 (g) Tatam v. Haslar, 23 Q. B. D. 345 ; 58 L. J. Q. B. 432 ; 
 38 W. E. 109. 
 
 (h) E. S. C. Ord. XIX. r. 13.
 
 GAMING SECURITIES UNDER WILL. IV. 
 
 not the onus of proving the absence of notice (i) ; but it 
 is submitted that at the present time the onus would be 
 shifted both as to the consideration and as to the 
 honesty. With regard to the honesty, section 90 of 
 Bills of Exchange- Act has the effect of summarizing 
 the authorities. A man may be grossly negligent, and 
 by virtue of such neglect fail to make inquiries ; such 
 negligence will be pertinent evidence of dishonesty 
 though it may not amount to proof of notice (A-). But 
 directly it is shown that the party has wilfully shut his 
 eyes to obvious means of knowledge, then he will be 
 placed in the same position as if he had made the 
 reasonable inquiries (/). Apart from constructive notice 
 it may in some cases be shown that a man had actual 
 knowledge. 
 
 If A. draws a bill payable to himself on B. in dis- Sect. 29, 
 charge of a gambling debt, and then assigns it to C., j,, , ,'/ 
 with actual notice of the illegality, and then 0. subse- 
 quently indorses to D., under (for example) such cir- 
 cumstances as would afflict D. with constructive notice 
 of the illegality, and D. in turn indorse to E. under 
 circumstances which make E. a holder in due course ; 
 then if E., whether or not for value, indorse the bill to 
 F., who, whilst not a party to the actual illegality on 
 which the note is based, has yet actual notice of that 
 illegality, F. may, as claiming through E., recover as 
 fully as E. could. If this were not so, E.'s power 
 
 (t) Bingham v. Stanley, 2 Q. B. 117 ; 1 G. & D. 237. 
 
 (k) Goodman v. Harvey, 4 Ad. & E. 870. 
 
 (I) May v. Chapman, 16 M. & W. 355 ; Jones v. Gordon, 2 App. 
 Cos. 616; 47 L. J. Bk. 1 ; 37 L. T. 477 ; 26 W. E. 172 ; Oakeley 
 v. Ooddeen, 2 F. & F. 656 ; 11 C. B. N. S. 805 ; Jonee v. Smith, 1 
 Hare, 43; Ware v. Egmont, 4 De G. M. & G. 460; A.-G. v. 
 Stephens, 6 De G. M. & G. Ill; 19 J. P. 642; Goodman v. 
 Harvey, 4 Ad. & El. 870. 
 
 95
 
 96 
 
 THE LAW OF GAMBLING. 
 
 An illustra- 
 tion of what 
 may amount 
 to notice. 
 
 Notice that 
 the considera' 
 tion at least 
 in part was 
 illegal. 
 
 of dealing with the bill would be limited by the ille- 
 gality. 
 
 The case of Lord Portarlington v. Soulby (>) affords 
 an example of the taint of illegality attaching to a 
 holder. The plaintiff accepted the bill for 1,000/., 
 drawn on him to secure the payment of money won at 
 play. The bill was made payable to the keeper of a 
 gaming house, by whom it was indorsed to one Brook, 
 and by him to the defendants. The undervalue paid 
 on the indorsement and the other circumstances of the 
 assignment to the defendants must have raised suspicion, 
 and should have led to inquiry. The plaintiff averred 
 the illegality of the consideration. The defendants did 
 not deny it, but endeavoured to rely on their own 
 alleged ignorance, and their belief in the ignorance of 
 their late partner, who carried out the transaction of 
 the assignment from Brook. Although it was alleged 
 that Brook was well aware of the illegality, yet the 
 defendants produced no evidence from him to prove 
 that he had not communicated that knowledge to them. 
 The defendants admitted that they now knew that the 
 drawer was the keeper of a gaming house, and that 
 they had been in correspondence with him. On these 
 grounds the plaintiff obtained the injunction sought by 
 him. 
 
 In the case of Hay v. Ayling (n) , the defendant, on a 
 wager about a horse race, lost 100/. to one Arbuthnot, 
 who, being indebted to the plaintiff in that amount, 
 induced the defendant to accept a bill drawn by the 
 plaintiff in his own favour for that amount. The bill 
 was dishonoured. The plaintiff, at the defendant's re- 
 
 (m) Portarlington v. Soulby, 3 M. & K. 104. 
 (n) Hay v. Ayling, 16 Q. B. 423; Soulton v. Coghlan, and 
 other cases there cited.
 
 GAMING SECURITIES UNDER WILL. IV. 97 
 
 quest, gave further time, and received in lieu of the 
 original bill two acceptances for 50/. each, which formed 
 the subject of the action. The plaintiff knew, when he 
 received the substituted securities, that the defendant's 
 original acceptance had been given for a gaming con- 
 sideration. It was unanimously held that the gaming 
 debt was, at all events, part of the consideration for the 
 substituted bills, and that therefore the plaintiff, who 
 took with notice, was unable to recover thereon. 
 
 It has been decided in Lynn v. Bell (0), that cheques Cheques are 
 are within the operation of the statute. A cheque is mcluded - 
 in the nature of an inland bill of exchange (p). The 
 term " bill of exchange " may, in a statute, include a 
 cheque (q), and this particular statute was intended to 
 operate on negotiable instruments. Hence the above 
 decision follows. 
 
 If mortgages were negotiable instruments, there would ii. Mortgages. 
 be no difficulty in their inclusion in section 1 of the 
 statute. But, as was shown in Part I. of this chapter, 
 mortgages are not negotiable. So far was this recog- 
 nised that, prior to the Judicature Act, it was necessary 
 for the transferor to give his transferee a power of 
 attorney to enable him to sue for the debt ; and again, 
 having regard to the fact that the transferee was bound, 
 in the absence of the mortgagor, by actual state of the 
 account between the mortgagor and the transferor, it 
 was suggested by Powell (r) that a note of hand would 
 
 (o) Lynn v. Bell, 10 IT. Eep. 0. L. 487. . 
 
 (p) Robson v. Bennett, 2 Taunt. 387 ; Keene v. Beard, 8 0. B. 
 (N. S.) 372 ; 29 L. J. 0. L. 287 ; 8 W. E. 469 ; 36 L. T. 240. 
 
 (q) Eyre v. Waller, 8 W. E. 450 ; 5 H. & N. 460 ; 29 L. J. 
 Ex. 246, decided on 18 & 19 Yict. c. 67. 
 
 (r) Powell on Mortgages, 6th edit. p. 908a. 
 
 G. H
 
 THE LAW OF GAMBLING. 
 
 be a valuable collateral security. In Ooote on Mort- 
 gages (s) it is stated that the transferee, without notice 
 and for valuable consideration, is in no better position 
 than the mortgagee when the mortgage is absolutely 
 void from the beginning. An old case which presents 
 Newport's case some difficulty is Newport's case (f) . The facts were, 
 that one Kendal created a mortgage, which, by divers 
 mesne assignments, was ultimately vested in Secretary 
 Coventry for a valuable consideration. Newport was 
 the executor of Secretary Coventry. Holt, C. J., held 
 that the mortgage was good between the parties, and, 
 being so, when the first mortgagee assigns for valuable 
 consideration, this is all one as if the first mortgage had 
 been upon a valuable consideration, for now the second 
 mortgagee (scilicet, the transferee) stands in his place. 
 The decision was that the fraud in the inception was 
 purged by the subsequent payment on the transfer. 
 But in an ordinary redemption or foreclosure action, 
 the account would have shown that nothing was due 
 and owing from the mortgagor to the mortgagee on the 
 security, and the transferee would, on the taking of 
 such account, have stood in the place of the mortgagee. 
 Such was the reasoning which led to the decision in 
 
 Parker v. Parker v. Clarke (u) , which, it is submitted, is correct, 
 Clarke. ^ " 
 
 and inconsistent with Newport's case. It will be re- 
 membered that it was Holt, C. J., who, in Hussey v. 
 Jacobs (x), erroneously decided that the transferee of a 
 void bill had a good cause of action against the acceptor. 
 
 (s) 5th edit. vol. 1, p. 724. 
 
 (<) Newport's case, Gas. t. Holt, 477 ; Skin. 423. 
 (u} See ante, p. 87. 
 
 (ce) Hussey v. Jacobs, 1 Salk. 344 ; 5 Mod. 170 (cas. 85) ; 1 
 Com. 4. See ante, pp. 81 etseq.
 
 GAMING SECURITIES UNDER WILL. IV. 99 
 
 A distinction has been drawn between the cases in which 
 the original mortgage was not void, but merely void- 
 able ; and it has been stated that in the latter case the 
 transferee for valuable consideration and without notice 
 acquires a valid security (y). In support of that propo- 
 sition two cases are cited, George v. Milbanke (z) and 
 Earl of Aldborough v. Trye (a). In George v. Milbanke 
 an interest under a voluntary appointment had been 
 sold, and it was decided that the purchaser of this spe- 
 cific part of the estate had a better equity than the cre- 
 ditors of the appointor. In Earl of Aldborough v. Trye 
 the plaintiff had created an annuity and charged it on 
 his estates. If there was any consideration moving from 
 the annuitant to the grantor, it was in connection with 
 services rendered in the negotiation of certain advances. 
 The annuitant subsequently assigned the annuity to 
 a purchaser for valuable consideration. The Irish 
 Court had allowed the grantor of the annuity to set 
 aside the transaction on payment by him to the assignee 
 of the amount of the purchase-money actually paid by 
 the latter. These cases, it is submitted, do not support 
 the proposition cited above with regard to voidable 
 mortgages. Both the cases were cited in the argu- 
 ment in Parker v. Clarke (V). As the transfer of a mort- 
 gage depends upon the non-negotiable chose in action, 
 there arises the difficulty presented by the statute. 
 
 The title of the Act indicates that it is an amend- Effect of the 
 ment of the law relating to securities given for securities mortgages. 
 
 (y] Coote on Mortgages, 5th edit. vol. 1, p. 724. 
 (z) George, v. Milbanke, 9-Ves. 190. 
 () Earl of Aldborough v. Trye, 7 01. & F. 436. 
 (6) Parker v. Clarke, 30 B. 54 ; 7 Jur. N. S. 1267 ; 9 W. E. 
 877. 
 
 H2
 
 100 THE LAW OF GAMBLING. 
 
 Difficulty of arising out of illegal transactions, and the preamble 
 specifically states the great hardship theretofore in- 
 flicted by the avoidance of the securities and instru- 
 ments under the statute of Anne as against bond fide 
 purchasers or other persons. The preamble is general, 
 and has reference to any security and instrument 
 within the statute of Anne, whether the same be nego- 
 tiable or not.- Section 1 of the Act deals with notes, 
 bills, or mortgages. It has thus included one kind of 
 unnegotiable instrument the mortgages; but it has 
 not included, expressly, at any rate, bonds and judg- 
 ments. Pursuant to the section, such mortgages, in- 
 stead of being absolutely void, are to be deemed to 
 have been executed for an illegal consideration. By 
 the second section, consequential relief is provided for 
 the mortgagor, who shall pay money to an assignee, 
 in respect of such payment, against the mortgagee. It 
 is clear that the Act intended that these special classes 
 of mortgages should be negotiable, and it is also reason- 
 ably clear that the Act intended to put such mortgages 
 on the same footing as if the statute of Anne had not 
 declared them void. The conclusion that the Act is 
 based upon a misconception is difficult to avoid : for if 
 a mortgage security is given for an illegal considera- 
 tion, then, as between the mortgagor and the mortgagee, 
 it is absolutely void, and no debt exists thereunder; 
 hence, it must follow as a necessary consequence that no 
 chose in action exists which can be transferred. There 
 is no authority in point as to the rights of the trans- 
 feree of such a mortgage. In Coote's Treatise on 
 Mortgages (c), it is, however, stated that the preamble 
 to the Act seems to warrant the assertion that such 
 (c) Coote on Mortgages, 5th edit. vol. 2, p. 976.
 
 GAMING SECURITIES UNDER WILL. IV. -101 
 
 mortgages are no longer totally void, but can be en- 
 forced by a transferee for valuable consideration, and 
 without notice, and. by no other person. With great Conclusion 
 deference, the submission is here made that the statute, 
 by enacting that such mortgages shall be deemed to be 
 taken for an illegal consideration, has not had the 
 effect of rendering such instruments negotiable when, 
 ex natura, they are not. 
 
 The solution of the difficulty may be possibly found 
 in dealings with the estate. The mortgagee may sell 
 the estate to a purchaser for value without notice, and 
 in the conveyance may expressly grant in exercise of 
 the power of sale conferred by the Conveyancing and 
 Law of Property Act, 1881. It may be that the 
 purchaser would, under and by virtue of sect/ 22, sub- 
 sect. 2, obtain an indefeasible title, in spite of the fact 
 that no case had arisen for the exercise of the power. 
 But it is not so much with regard to mortgages by 
 deed that the difficulty would in practice arise, seeing 
 that the recitals would probably be sufficiently definite 
 to raise an estoppel (d] as against the mortgagor in 
 favour of the assignee or purchaser. 
 
 The preamble of the statute is large enough to in- iii. Bonds, 
 elude bonds, but the enacting part does not include 
 them. The difficulty lies in the explanation of the 
 inclusion of mortgages and the exclusion of bonds. 
 Y.-C. Stuart, in the case of Hawker v. Halkicett(e)j Hawker v. 
 said, " The statute, in its operative part, certainly only 
 extends to negotiable securities, but the recital of the 
 Act clearly includes bonds and securities of every kind. 
 The operative part of the Act is intended to give a 
 
 (d) See ante, pp. 88, 89. 
 
 (e) Hawker v. JIallewell, 3 Sm. & G. 194 ; 2 Jur. N. S. 537 ; 
 affirmed on appeal, 25 L. J. Ch. 558 ; 2 Jur. N. S. 794.
 
 102 THE LAW OF GAMBLING. 
 
 remedy in Courts of law to bond fide holders who could 
 sue at law in their own names : but a bond can only 
 be sued for in the name of the obligee at law, and the 
 assignee cannot bring an action in his own name." 
 The learned Yice-Chancellor then expresses an opinion 
 that bonds were within the equity of the statute. He 
 said, " Considering, therefore, that the case of the bond 
 fide assignee of a bond without notice is clearly within 
 the scope of the preamble, there are strong reasons for 
 holding that he is within the equity of the Act. The 
 recital of the Act, clearly embracing bonds as well as 
 other securities, and the legislature seldom interfering 
 to define or prescribe by express enactment the limits of 
 the paramount jurisdiction of the Courts of equity, and 
 the maxim that equity follows the law, are considera- 
 tions which strongly support the application, by Courts 
 of equity, of that same principle of natural justice in 
 favour of the bond fide assignee of a bond for valuable 
 consideration without notice, which this Act directs 
 that courts of law shall apply to bond fide holders of 
 bills of exchange under similar circumstances." Un- 
 fortunately, it was not necessary to dispose of the case 
 on that ground. The Yice-Chancellor found as a fact 
 that the onus of proving that the bond was to secure a 
 gambling debt was not discharged, and even if it had 
 been established, there was ground for setting up an 
 estoppel. The facts were, that the plaintiff had given 
 the bond to one Jenkins, by whom it was assigned to 
 one Herbert, and by him to a certain bank, for value. 
 In the bankruptcy of the plaintiff the bank sought to 
 prove on the bond, but the plaintiff then for the first 
 time alleged that the bond had arisen out of wagering 
 transactions on horse races. The plaintiff alone gave 
 evidence, and that not of a satisfactory character, in
 
 GAMING SECUKITIES UNDER WILL. IV. 103 
 
 support of his allegation. On appeal from the decision 
 
 of the Vice-Chancellor, his decision was upheld on the 
 
 ground that the allegation as to the origin of the bond 
 
 had not been established. Lords Justices Knight Bruce 
 
 and Turner apparently admit the validity of the plea 
 
 set up in opposition of the claim, but conclude that it 
 
 was not proved. Lord Justice Turner said, " The bank 
 
 had proved the execution of the bond, and that the 
 
 bond contained a recital that a debt was due from 
 
 Hawker, and the onus was therefore on him to show 
 
 that no debt was due from him to Jenkins, and that 
 
 what was referred to as a debt was in reality contracted 
 
 in a gambling transaction, and therefore nothing was 
 
 due on it." This case, then, is not an authority to 
 
 show that bonds are within the equity of the statute. 
 
 In an Irish case of Lynn v. Bell (/), there are dicta 
 
 which explain why bonds were excluded, namely, that 
 
 the securities in the operative part of the Act are those, 
 
 and those only (of the securities within the statute of 
 
 Anne), to which an indorsee or transferee for value 
 
 without notice, could acquire a title better than that 
 
 of the person from whom he took. " The scheme of 
 
 the Act depends upon the securities within it being of 
 
 that class." Thus the reason for the exclusion of bonds Bonds 
 
 and judgments is manifest, but the same reason would excluded - 
 
 have applied to the exclusion of mortgages. 
 
 The result of the exclusion of bonds from the statute Result as to 
 of Will. IV. is that, having thereby allowed the statute 
 of Anne to remain in force, as far as bonds were con- 
 cerned, the subsequent Act of 8 & 9 Viet. o. 109, has 
 repealed that portion of the statute of Anne. The 
 
 (/) Lynn v. Bell, 10 Ir. Eep. 0. L. 487.
 
 104 THE LAW OF GAMBLING. 
 
 wager is void under 8 & 9 Viet. c. 109, and a bond to 
 secure a wagering debt is a voluntary security (g) . 
 Procedure. Where there is a danger that a security, to which the 
 
 taint of illegality attaches, may be assigned to the 
 detriment of the maker, acceptor, or grantor, or persons 
 interested in it, the present practice is to apply in the 
 Chancery Division of the High Court of Justice for an 
 injunction and other relief, such as the delivery up and 
 cancellation of the security. The application for an 
 injunction can be made ex parte on the strength of an 
 affidavit, which must clearly show the illegality and the 
 impending danger. The ex parte injunction will be 
 until the next motion day, when the Court may restrain 
 the defendant until the trial of the action or further 
 order, and may direct the deposit of the security into 
 Court (Ji). Under the old procedure this kind of case 
 usually came before the Court of Chancery upon an 
 application to restrain proceedings at law upon the 
 instrument. However, by the Judicature Act, 1873, 
 s. 24 (5), this jurisdiction has been abolished; any 
 equitable defence which would have supported an in- 
 junction against the prosecution of an action at law 
 may be relied upon by way of defence in whatever 
 Division of the High Court of Justice the action may 
 have been brought. 
 
 Sect. 2 of 5 & 6 The second section of the Act of Will. IV. is comple- 
 WHLIV.o.41. 
 
 mentary to the first. A. loses 1. to B. at gaming, 
 
 and gives a bill, note, or mortgage to B. as security. 
 
 B., in consideration of /. paid to him by C., assigns 
 
 the security to C. Subsequently C. enforces payment of 
 
 (g) Bull v. Yelverton, L. E. 9 Eq. 471 ; 39 L. J. Ch. 428 ; 22 
 L. T. 258 ; 18 W. E. 512 (this point was argued but not decided). 
 (7i) Forms of Order, Seton, p. 616, and the cases there cited.
 
 GAMING SECURITIES UNDER WILL. IV. 
 
 105 
 
 the -/. so secured from A. Then the second section 
 
 enables A. to recover from B. the amount, /., 
 
 which he has paid to C. In the case of Lynn v. ell(i), 
 the plaintiff lost to the defendant, on bets on three horse 
 races, sums which he paid by three cheques in form as 
 follows: "To the Ulster Banking Company. Pay . 
 
 Mr. R. Bell or bearer /., which charge to the 
 
 account of James Lynn." The first and second cheques 
 were indorsed by Bell to third persons bond fide holders 
 for value, who cashed them ; the last was indorsed by 
 Bell alone, and was cashed by a person who received it 
 from him in payment of losses on betting transactions. 
 Lynn thereupon brought his action to recover the 
 amount of the cheques. It was held that payment by 
 the bankers was payment by Lynn within the statute, 
 and that he was entitled to recover. The statute was 
 not intended to alter the rights and liabilities of the 
 parties, inter se, by whom and to whom such securities 
 were given. However, where A., the loser, draws on 
 B. in favour of C., who indorses to D., and then D. 
 recovers from B. the amount of the bill, A. cannot 
 under the statute sustain an action against the payee, 
 C., in virtue of B.'s payment ; the payment must be by 
 the loser himself. Again, in the same case, the defen- 
 dant counterclaimed as against the plaintiff in respect 
 of a cheque for 18/., drawn by a third person, and 
 indorsed by the defendant to the plaintiff for payment 
 of a bet ; but the counterclaim failed in so far as the 
 payment sought to be recovered was not made by the 
 defendant himself, who had merely given the third 
 person credit for the 18/. In the case of Gilpin v. 
 Clutterbuck (), the plaintiff had lost 1,000/. at one 
 
 (t) Lynn v. Bell, 10 IT. Eep. C. L. 487. 
 (*) Qilpin v. Clutterbuck, 13 L. T. 71, 159.
 
 106 
 
 THE LAW OF GAMBLING. 
 
 A particular 
 instance 
 under the 
 second 
 section. 
 
 sitting to the defendant, at cards, and had 'accepted 
 bills for the amount. The defendant indorsed one of 
 the bills to a third person, who in an action recovered 
 the debt and costs from the plaintiff. The plaintiff 
 thereupon successfully sued the defendant to recoup 
 him the amount which he had thus been compelled 
 to pay to the indorsee. 
 
 There is one particular instance of the operation of 
 the section which merits notice. A. gives B. a security 
 for the repayment of money knowingly advanced by 
 
 B. to A. (say /.) for the purpose of gaming, or lent 
 
 at the time and place of the gaming to A., a player. 
 
 B. assigns the security to C. for 1. 0. enforces the 
 
 security against A., and thereby compels A. to repay 
 the money advanced by B. to him. Can A. now sue B. 
 
 for the recovery of the /. so paid by A. to 0. in 
 
 respect of the assigned security ? If yes, then B. first 
 
 lends A. L, and then, because he takes a security 
 
 for the payment of the money so lent and assigns the 
 
 same, he has again to pay A. a further sum of /. 
 
 In the result, he is compelled to lose the amount he 
 actually advanced to A. in the first instance.
 
 ( 107 ) 
 
 CHAPTER VI. 
 
 CIVIL OBLIGATIONS ARISING OUT OF ILLEGAL 
 TRANSACTIONS. 
 
 IN Chapters III. and IV. the sphere of the illegal trans- 
 actions with which this book is concerned was indicated 
 by an examination of the various statutes, containing 
 implied or expressed prohibitions; and in the last 
 chapter the enactments relating to certain classes of 
 securities deemed to be given for an illegal considera- 
 tion have been examined. It now remains to discuss 
 generally the effect of illegality on transactions in a 
 nearer or in a more remote degree connected therewith. 
 
 It is a well-recognized general rule that no right of General rule, 
 action arises out of an illegal transaction : Ex turpi causa 
 non oritur actio. The civil law was emphatic : " Eei 
 turpis nullum mandatum est : et ideo hao actione non 
 agitur. Illud quoque mandatum non est obliga- 
 torium, quod contra bonos mores est. Yeluti si Titius 
 de f urto, aut de damno faciendo, aut de injuria facienda, 
 tibi mandet ; licet enim poanam istius facti nomine prse- 
 stitem non tamen ullam habes adversus Titium actionem. 
 Pacta quse contra leges constitutionesque vel contra 
 bonos mores fiunt, nullum vim habere, indubitati 
 juris est "(a). In the well-known case of Collins v. 
 lantern(b), Wilmot, C. J., said : "This is a contract 
 
 (a) Dig. Lab. 17, t. 1, 1. 6, sect. 3; Instit. Lib. 3, tit. 26, 
 sect. 7. 
 
 (6) Collins y. Blantern, 2 Wils. 341, 347.
 
 108 THE LAW OF GAMBLING. 
 
 to tempt a man to transgress the law, to do that which 
 is injurious to the community : it is void by the common 
 law : and the reason why the common law says such 
 
 V / 
 
 contracts are void, is for the public good. You shall not 
 stipulate for iniquity. All writers upon our law agree 
 in this, no polluted hand shall touch the pure fountains 
 of justice. Whoever is a party to an unlawful contract, 
 if he hath once paid the money stipulated to be paid in 
 pursuance thereof, he shall not have the help of the 
 Court to fetch it back again, you shall have no right 
 of action when you come into a Court of Justice in this 
 unclean manner to recover it back. Procul, ! procul 
 este profani." 
 
 What is a The rule embraces equally transactions which are 
 
 turpis causa. .... 
 
 mala in se, intrinsically immoral, and those which are 
 
 mala prohibita, as contrary to statutory provisions. A 
 distinction, the tendency of which was to consider 
 acts mala prohibita less illegal than those mala in 
 se, was, however, taken between the two classes in 
 (1767) Faikney v. Reynous (c), and (1789) Petrie v. 
 Hannay (d) ; but such distinction has long since, by a 
 series of cases, been declared unsound (e) . In Bartlett 
 v. Vinor (/), Holt, C. J., said : " Every contract made 
 for or about any matter or thing which is prohibited and 
 made unlawful by statute is a void contract, though the 
 statute does not mention that it shall be so, but only 
 inflicts a penalty on the offender, because a penalty 
 
 (c) Faikney v. Reynous, 4 Burr. 2070. 
 
 (d) Petrie v. Hannay, 3 T. E. 418. 
 
 (e) Steers v. Lashley, 6 T. E. 61 ; Mitchell v. Cocklurn, 2 H. 
 Bl. 380 ; Brown v. Turner, 7 T. E. 630 ; 2 Esp. 631 ; Aulert v. 
 Maze, 2 B. & P. 371 ; Well v. Brooke, 3 Taunt. 6 ; Langton v. 
 Hughes, 1 M. & S. 593 ; Ex parte Bell, 1 M. & S. 751 ; Gannan 
 v. Bryce, 3 B. & Aid. 179; Ex parte Mather, 3 Ves. 373. 
 
 (/) Bartlett v. Vinor, Garth. 251.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 109 
 
 implies a prohibition, though there are no prohibitory 
 words in the statute." The principle of the general 
 rule is thoroughly sound; but its application is fre- 
 quently difficult, for it is not easy to determine how far 
 the taint of illegality extends (g). 
 
 Thus, in Faikney v. Reynous (h) , the plaintiff and one 
 Richardson were jointly concerned in certain illegal 
 transactions, and the plaintiff in execution thereof paid 
 a large sum of money on behalf of himself and Richard- 
 son. Subsequently, by way of security for the repay- 
 ment by Richardson to the plaintiff of the former's 
 share in the latter's disbursements, the defendant gave 
 the plaintiff a bond, on which the action was founded. 
 In the action, the plaintiff was met with the defence of 
 the illegality of the original transactions, hence arose 
 the question whether the taint therefrom extended to 
 the bond. Lord Mansfield distinguished the bond from 
 one given in payment by the plaintiff and Richardson 
 to the other parties to the illegal transaction, and held 
 the bond to be valid. Again, in Petrie v. Hannay (i), 
 the plaintiff and defendant jointly engaged in illegal (/) 
 stock -jobbing transactions, and incurred losses, and 
 employed a broker to pay the difference, and the plain- 
 tiff repaid the broker the whole amount with the privity 
 and consent of the defendant, it was held that the fact 
 that the original transaction was illegal did not vitiate 
 the subsequent payment by the plaintiff and prevent 
 him from recovering from the defendant in an action 
 for money paid to his use. But Lord Eldon, in Aubert 
 
 (g) Armstrong v. Toler, 11 Wheat. 258. 
 (K) Faikney v. Reynous, 4 Burr. 2070. 
 (*') Petrie v. Hannay, 3 T. E. 418. 
 (V) Barnard's Act, 7 Geo. II. c. 8.
 
 110 . . THE LAW OP GAMBLING. 
 
 v. Maze (&), stated that if the principle of the two fore- 
 going cases was to be supported the Act of Parliament 
 would be of very little use. Both cases are now over- 
 ruled in England. For instance, a broker paid money 
 in respect of illegal stock- jobbing transactions, and in 
 consideration of such payment drew a bill on his prin- 
 cipal. But the bill was held to be drawn for an illegal 
 consideration, and consequently would not support an 
 action by the broker or by his assignee who took with 
 notice (/). In illegal partnerships, one partner cannot 
 recover his share of the profits from the others, nor can 
 he make the others recoup him their shares of the 
 losses (m). 
 
 Fisher v. The important case of Fisher v. Bridges (ri) affords 
 
 another illustration of the difficulty of the application 
 of the general rule. The plaintiff agreed to sell a 
 parcel of land to the defendant for a sum of money, 
 " to the intent and in order and for the purpose, as the 
 plaintiff at the time of the agreement for sale well 
 knew, that the land should be sold by lottery, contrary 
 to the statute." In pursuance of such agreement the 
 
 (it) Aubert v. Maze, 2 Bos. & P. 371. 
 
 (Z) Steers v. Lasliley, 6 T. E. 61 ; Brown v. Turner, 7 T. E. 
 630 ; 2 Esp. 631. 
 
 (m) Sullivan v. Greaves, Park on Insurance, 8 ; Mitchell v. 
 Cocklurn, 2 H. Bl. 380 ; Booth v. Hodgson, 6 T. E. 405. 
 
 (11) Fisher v. Bridges, 2 E. & B. 118, in the Queen's Bench 
 3 E. & B. 642 ; 2 0. L. E. 928 ; 2 L. J. Q. B. 165 ; 1 Jur. N. S. 
 157 (in error in Exch. Chamber) ; followed in Hilton v. Eckersley, 
 6 E. & B. 47, 66 ; 25 L. J. Q. B. 199 ; 2 Jur. N. S. 587 ; Geere 
 v. Mare, 2 H. & 0. 339 ; 33 L. J. Ex. 50 ; 8 L. T. N. S. 463. 
 The connexion too remote, see A.-G. v. Hollingswortli, 2 H. & N. 
 416 ; 27 L. J. Ex. 102 ; Flight v. Reed, I H. & 0. 703 ; 9 Jur. 
 N. S. 1016 ; 32 L. J. Ex. 265 ; 12 W. E. 53 ; cf. Payne y. Mayor 
 of Brecon, 3 H, & N. 572 ; 27 L. J. Ex. 495.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 1H 
 
 plaintiff conveyed the land to the defendant. The de- 
 fendant paid a part of the consideration money, hut, by 
 way of security for the payment of the residue, gave 
 the plaintiff a bond. In the action the plaintiff sought 
 to enforce the bond, and the defendant pleaded the above 
 facts as showing illegality. The issue was whether or 
 not the bond could be treated as so severed from the 
 illegal sale as to be valid. The Court of Queen's Bench 
 held that the bond was good, or, rather, that the plea in 
 defence was bad; for, as Erie, J., said, " that whatever is 
 entirely posterior to the illegal act may be supported as 
 not being tainted with the illegality ; " and in the 
 original illegal agreement there was no stipulation for 
 the giving of such a deed of covenant, and the deed was 
 not executed in contemplation or in furtherance of the 
 illegal contract. The Court of Exchequer Chamber, 
 however, came to the contrary conclusion, saying that 
 " It is clear that the covenant was given for payment of 
 the purchase money. It springs from and is the creature 
 of the illegal 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." The cases on bonds given in consideration 
 of past cohabitation were considered in the course of the 
 case, and in the Exchequer Chamber it was pointed out 
 that if an agreement had been made to pay a sum of 
 money in consideration of future cohabitation, and after 
 cohabitation, the money being unpaid, a bond- had been 
 given to secure that money, then such a bond could not, 
 under the circumstances, be enforced. 
 
 Exception has been taken to the decision of the Court 
 of Exchequer Chamber on the ground that to hold a 
 contract void because it was to pay a sum of money
 
 112 THE LAW OF GAMBLING. 
 
 tainted with illegality is vague and dangerous as a pre- 
 cedent, and liable to degenerate into the mere private 
 discretion of the majority of the Court (o). But it is 
 submitted that there was a very substantial connection 
 between the bond in question and the illegal transac- 
 tion, and that the decision of the Court of Queen's 
 Bench is open to the objection which Lord Eldon took 
 with regard to Faikney v. Reynom, that it would impair 
 seriously the operation of the statute. 
 
 Illegality Sometimes a contract may be tainted with the ille- 
 
 gality of a subsequent transaction. For instance, at a 
 time when brewers were prohibited from using certain 
 drugs (j), but before druggists had been by statute pro- 
 hibited (<?) from selling such drugs to brewers (<?), it was 
 held that a druggist could not recover the price of drugs 
 sold by him to a brewer, knowing that the drugs were 
 to be used in the brewery (r). That case led to the 
 decision of Cannan v. Bryce (s), where, on behalf of the 
 plaintiff, it was contended that the loan of money there 
 in question had been made for the express purpose of 
 enabling a third person to pay differences on illegal 
 stock- jobbing transactions, and that the loan was itself 
 illegal, and that consequently any security given for its 
 repayment must be void. On the behalf of the defen- 
 dant it was advanced that he was not a party to the 
 illegal transaction, and that the loan was not illegal, 
 and that the securities were therefore available in law. 
 Abbot, C. J., said : " The statute has absolutely pro- 
 
 (o) Collins v. Blantern, 2 Wils. 341 ; Smith's Leading Cases, 
 9th ed. vol. 1, pp. 423, 424. 
 (p) 42 Geo. m. 
 (j) 51 Geo. III. 
 
 (r) Langton v. Hughes, 1 M. & S. 593. 
 (s) Cannan y. Bryce, 3 B. & Aid. 179.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 113 
 
 hibited the payment of money for compounding diffe- 
 rences, it is impossible to say that the making such 
 payment is not an unlawful act ; and if it be unlawful 
 in one man to pay, how can it be lawful for another 
 man to furnish him with the means of payment ? I am 
 speaking of a case where the means were furnished with 
 full knowledge of the object, and for the express purpose 
 of accomplishing that object." In M'Kinnell v. Robin- 
 son (), the plaintiff sued for money lent and found to be 
 due on account stated ; the defendant pleaded that the 
 money was lent in a common gambling room, for the 
 purpose of illegal gaming by the defendant at hazard. 
 It was, in the result, held that the principle of Cannan v. 
 Bryce applied : and that the plaintiff could not recover. 
 
 Similarly, where rooms were knowingly let for an Knowledge of 
 illegal purpose, the rent could not be recovered (11). pul 
 The rooms in question were not merely knowingly let to 
 a prostitute, but were let for the purpose of prostitution. 
 In the case of Cowan v. Mifl>ourn(v), the defendant 
 agreed to let rooms to the plaintiff, and afterwards 
 discovered that the same were intended to be used for 
 the delivery of blasphemous lectures ; he thereupon 
 declined to carry out the contract. It was held against 
 the plaintiff, that his intended illegal user deprived 
 him of any right of action on the contract, which did 
 not bind the defendant, though, at the time of contract- 
 ing, he was ignorant of the plaintiff's unlawful purpose. 
 These two cases would be in point, for example, with 
 regard to the letting of rooms for purposes unlawful, 
 
 (t) M'Kinnell v. Robinson, 3 M. & W. 434. 
 
 (u) Jennings v. Throgmorton, E. & M. 251 ; Girardy v. 
 Richardson, 1 Esp. 13; Lloyd v. Johnson, 1 B. & P. 340; see 
 also Bowry v. Bennet, 1 Camp. 348. 
 
 (v} Cowan v. Milbourn, L. R. 2 Ex. 230 ; 36 L. J. Ex. 124 ; 
 16 L. T. 290; 15 W. E. 750. 
 
 O. 1
 
 114 
 
 THE LAW OF GAMBLING. 
 
 Chattels 
 supplied in 
 furtherance 
 of illegal 
 purpose. 
 
 and prohibited by the Lottery Acts, or Gaining or 
 Betting House Acts. 
 
 Again,. where goods are knowingly sold for an illegal 
 purpose, the contract cannot be enforced or sued on. 
 In the case of Pearce v. Brookes (w), the point was 
 raised with regard to the sale of a brougham. The 
 defendant pleaded that she, to the knowledge of the 
 plaintiff, was a prostitute, and that the supposed agree- 
 ment was made for the supply of a brougham to be 
 used by her as such prostitute, and to assist her in her 
 immoral vocation, as the plaintiff well knew. The 
 jury found, first, that the defendant did hire the 
 brougham for the purposes of her prostitution ; and, 
 secondly, that the plaintiff knew the purposes for 
 which she hired it. Pollock, C. B., on the authority of 
 Cannan v. Bryce, H'Kinnell v. Robinson, said it was 
 settled law "that any person who contributes to the 
 performance of an illegal act, by supplying a thing 
 with the knowledge that it is going to be used for 
 that purpose, cannot recover the price of the thing so 
 supplied." Bramwell, B., in the same case pointed out 
 that "it need not be a part of the bargain that the 
 subject of the contract should be used unlawfully, but 
 that it is enough if it is handed over for the purpose 
 that the borrower should so apply it." But, for in- 
 stance, if money or goods be handed over, with a 
 knowledge that the same may or may not be used 
 for an illegal purpose, the lender or the vendor may 
 recover. Thus, in Bagot v. Arnott (x), the money was 
 advanced for the purpose of obtaining a security for 
 a pre-existing debt, with knowledge that it might be 
 used to enable a criminal to escape; nevertheless the 
 lender recovered his loan. 
 
 (w) Pearce v. Brookes, L. E. 1 Ex. 213 ; 35 L. J. Ex. 134 ; 12 
 Jur. N. S. 342 ; 14 L. T. 288 ; 14 W. E. 614. 
 (x) Bagot v. Arnott, I. E. 2 C. L. 1.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 115 
 
 So, also, remuneration for work and labour done to Work and 
 effectuate an illegal purpose cannot be recovered. In 
 Bensley v. Bignold(y\ the printer failed to recover for 
 printing a pamphlet, or for the paper on which it was 
 printed. Abbott, 0. J., said : " I am of opinion that 
 a party cannot be permitted to sue either for work and 
 labour done, or for materials provided, where the whole 
 combined forms one entire subject-matter made in 
 direct violation of the provisions of an Act of Parlia- 
 ment." This case would apply, for example, to the 
 printing of advertisements or betting lists, within the 
 prohibition of the Betting House Acts (z). Similarly 
 where the transaction is malum in se. A question may 
 arise as to whether the work and labour was done for an 
 improper purpose : for instance, washing clothes and 
 gentlemen's nightcaps for a prostitute ; the Court may 
 decline to inquire which of the articles were used for an 
 improper purpose, and which not (a) . 
 
 Where a part of the consideration of a contract is If one of the 
 illegal, the whole contract is vitiated; for the illegal O f the contract 
 consideration affects the whole contract. For instance, l!:^ ' T? 
 
 * uroiuifa" is 
 
 if a sum of money be advanced partly for the purpose void * 
 of playing at hazard, and partly for some innocent 
 purpose, then any security given to secure the advance 
 would be wholly tainted with the illegality of the part 
 of the consideration (b). 
 
 The defence of illegality should, pursuant to the Rules Pleading 
 of the Supreme Court, be pleaded by stating the facts 
 
 (y) Bensley v. Bignold, 5 B. & Aid. 335. 
 
 (z) See post, Chap. XIII. 
 
 fa} Lloyd v.. Johnson, 1 B. & P. 340. 
 
 (b) Featherstone v. Hutchinson, Cro. Eliz. 199 ; Waits v. Jones, 
 1 Bmg. N. C. 656 ; 1 Scott, 730 ; ShacMl v. Rosier, 2 Bing. 
 N. C. 646 ; Howden v. Haigh, 11 A. & E. 1033 ; 3 P. & D. 661 ; 
 Lound v. Grimwade, 39 Ch. D. 605 ; 57 L. J. Ch. 725 ; 59 L. T. 
 168. See, as to illegal conditions of bonds, Smith's L. C. vol. 1, 
 pp. 416, 417. 
 
 i2
 
 116 
 
 THE LAW OF GAMBLING. 
 
 which show its existence (c). In the case of Potts v. 
 Sparrow (d), it was stated by Tindal, C. J., that "he 
 had never heard that if the defendant omits to avail 
 himself of the plea, that the Court is to go on and 
 discover it for him. There are many cases in which 
 the claim in respect of services performed or goods 
 delivered would be plainly illegal, and as such would 
 impose on the defendant the necessity of pleading the 
 illegality, although no express contract would be proved 
 at the trial." Again, in Varney v. Hickman (e), where 
 the plaintiff brought an action of debt for money had 
 and received, and the defendant merely pleaded that 
 he was never indebted, instead of stating facts show- 
 ing that the transaction was a wager on a trotting 
 match, Maule, J., said that the scope of the new rules 
 is to restrain the defendant from proving, under the 
 general traverse, affirmative matter which goes to im- 
 peach the legality of the contract declared on without 
 interfering with its existence in point of fact. But the 
 Court, in spite of the omission to plead the illegality, 
 may take cognizance of it, and refuse to entertain the 
 action (/). 
 
 Right of The previous part of this chapter has exemplified the 
 
 whilst illegal general rule. There is, however, a well-established right 
 
 executory which enables a party to an illegal contract to rescind 
 
 the contract, and to claim consequential relief on that 
 
 (c) E. S. C. Ord. XIX. r. 15. 
 
 (d) Potts v. Sparrow, I Bing. N. 0. 594. 
 
 (e) Varney v. HicJcman, 5 C. B. 271 ; 5 D. & L. 364; 17 L. J. 
 0. P. 102. 
 
 (/) Begbie v. Phosphate Sewage Co., 1 Q. B. D. 679; 35 L. T. 
 350 ; 25 W. E. 85 (C. A.), affirming, L. E. 10 Q. B. 491 ; 44 L. J. 
 Q. B. 233 ; 33 L. T. 470 ; 24 W. E. 115 ; Scott v. Brown, Doering, 
 MacNab & Co., Slaughter and May v. Brown, Doering, MacNab & 
 Co., (1892) 2 Q. B. 724 ; 4 E. 42 ; 61 L. J. Q. B. 738 ; 67 L. T. 
 782 ; 41 W. E. 116 ; 57 J. P. 213.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 117 
 
 footing. The following authorities will show when 
 that right exists and when it ceases. 
 
 In 1780, in the case of Lowry v. Bourdieu (g), Buller, RestUutw in 
 J., stated " There is a sound distinction between con- mte 9 rum - 
 tracts executed and executory, and if an action is 
 brought with a view to rescind a contract, you must 
 do it whilst the contract continues executory and then 
 it can only be done on terms of restoring the other 
 party to his original situation." The contract, in 
 that case, was an illegal insurance in the nature of a 
 hedging bet. Again, in Tappenden v. Randall (h], after 
 the money had been paid over, and before the event 
 had happened, the plaintiff, having demanded his 
 money back, was allowed to recover. So, in Aubert v. 
 Walsh (?'), where money had been deposited upon a then 
 illegal wager on a future event, the plaintiff was allowed 
 to recover it back before the happening of the event. 
 Lord Mansfield stated that the demand of the money 
 back before the day rescinded the contract, and that as 
 the contract was illegal, the plaintiff was allowed so to 
 rescind it. Neither in Tappenden v. Randall, nor in 
 Anlcrt v. Walsh, nor in Busk v. Walsh, was there a sug- 
 gestion that the defendant could not be put back into 
 his original situation. The principle was enunciated 
 by Hellish, L. J., in the case of Taylor v. Bowers (j] 
 " If money is paid or goods delivered for an illegal 
 purpose, the person who has delivered the goods or paid 
 the money, may recover them back before the illegal 
 purpose is carried out ; but if he waits till the illegal 
 
 (g) Lowry v. Bourdieu, 2 Doug. 468. 
 
 (h) Tappenden v. Randall, 2 B. & P. 467. 
 
 (t) Aubert v. Walsh, 3 Taunt. 277; Busk v. Walsh, 4 Taunt. 
 290. 
 
 (/) Taylor v. Sowers, 1 Q. B. D. 291 ; 45 L. J. Q. B. 163 ; 34 
 L. T. 263; 24 W. E. 499.
 
 118 THE LAW OF GAMBLING. 
 
 purpose is carried out, or if lie seeks to enforce the illegal 
 transaction, in neither case can he maintain his action." 
 In Wilson v. Strugnell (k] the principle is stated in simi- 
 lar terms. In the case of Herman v. Jeuchner (I), in the 
 Court of Appeal, Baggallay, L. J., after allowing that 
 when the illegal purpose had not been effected the 
 money deposited might be recovered back, added, " but, 
 on the other hand, I am hardly prepared to say that, 
 in order to prevent a plaintiff from succeeding who sues 
 to recover back money deposited in furtherance of an 
 illegal purpose, the illegal object itself must be fully 
 carried out." In the recent case of Kearky v. Thom- 
 son (m), Lord Justice Fry, delivering judgment on 
 behalf of Lord Chief Justice Coleridge and the Master 
 of the Rolls, stated the general rule, and examined the 
 several exceptions or apparent exceptions thereto. He 
 cited the passage quoted above from the case of Taylor 
 v. Bowers, and added " It is remarkable that this pro- 
 position is, as I believe, to be found in no earlier case 
 
 than Taylor v. Bowers, which occurred in 1867 
 
 I cannot help saying that I think the extent of the 
 application of that principle, and even the principle 
 itself, may at some time hereafter, require considera- 
 tion, if not in this Court, yet in a higher tribunal." 
 It is, however, submitted that, having regard to autho- 
 rities prior to 1867, the principle is well established, 
 
 (fc) Wilson v. Strugnell, 1 Q. B. D. 548 ; 50 L. J. M. 0. 145 ; 
 45 L. T. 218 ; 45 J. P. 831 ; 14 Cox, 0. C. 624 ; see also Bone v. 
 Eckless, 5 H. & N. 925 ; 29 L. J. Ex. 438 ; Symes v. Hughes, 
 L. E. 9 Eq. 475 ; 39 L. J. Oh. 304 ; 22 L. T. 462. 
 
 (Z) Herman v. Jeuchner, 15 Q. B. D. 561 ; 54 L. J. Q. B. 340 ; 
 53 L. T. 94 ; 33 W. B. 606 ; 49 J. P. 502 (C. A.), reversing 1 C. 
 & E. 364. 
 
 (TO) Kearley v. Thomson, 24 Q. B. D. 742; 59 L. J. Q. B. 
 288 ; 63 L. T. 150; 38 W. E. 614.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 119 
 
 though the extent of its application is not strictly 
 definite. The case of Kearley v. Thomson is an express 
 decision that when the illegal contract has been partly 
 carried into effect and partly remains unperformed, that 
 money paid thereunder to the other party cannot be 
 recovered. This illustration was given : Suppose a 
 payment of 100/. by A. to B., on a contract that the 
 latter shall murder C. and D. He has murdered 0. 
 but not D. Can the money be recovered back? It 
 cannot. But if that illustration be tested by the principle 
 as enunciated by Buller, J., in Lowry v. Bourdieu, tlje 
 same result is arrived at, because B. cannot be restored 
 to his original position. Further illustrations of the 
 power to rescind an illegal contract will be hereafter 
 given in considering the position of agents in illegal 
 transactions (). 
 
 The next exception to the general rule arises where Oppressor and 
 the illegal transaction has been completed, but the 
 parties thereto have respectively occupied the positions 
 of oppressor and oppressed. The cases on this subject 
 are mostly derived from illegal transactions in connec- 
 tion with financial embarrassments, or in cases of extor- 
 tion by duress (o) ; but it is not without application to 
 gambling transactions. Thus, in the case of Thistleicood 
 v. Cracroft (p), where the defendant had won money of 
 the plaintiff at play at hazard, the plaintiff would have 
 
 (n) Post, pp. 127 et seq. 
 
 (o) In connection with bankruptcy : Smith v. Bromley, 2 
 Doug. 695; Smith v. Cuff, 6 M. & S. 160; Wilson v. Ray, 10 Ad. 
 & El. 82 ; 3 Jur. 384 ; 2 P. & D. 253 ; in connection with penal 
 actions : Williams v. Hedley, 8 East, 378 ; Unwin v. Leaper, 1 
 M. & Gr. 747 ; 1 Drink. 3 ; 4 Jur. 1037 ; in connection with 
 colourable legal process : Cardaval v. Collins, 4 Ad. & El. 858. 
 See also Goodall v. Lowndes, 6 Q,. B. 464 ; 9 Jur. 177. 
 
 (p) Thistlewood v. Cracroft, 1 M. & S. 500.
 
 120 THE LAW OF GAMBLING. 
 
 been allowed to recover the money so won, if he could 
 have shown any traces of foul play, so as to form a 
 shade of delinquency between himself and the defend- 
 ant, by making it a case of oppression or fraud on one. 
 The Court would then have eagerly interfered in order 
 to administer relief. 
 Where the Sometimes a statute renders a transaction illegal, but 
 
 dehctum is 
 
 not par. the object of the statute is to protect one class of persons 
 
 from another class. The two classes with reference to 
 such a transaction do not stand in pan ddicto, and 
 therefore an exception, whereunder the protected are 
 allowed to sue, is engrafted on the general rule. This 
 is the case with regard to the Lottery Acts. Speaking 
 particularly with reference to the statute 14 Greo. III. 
 c. 76, De Grey, C. J., said : " The statute is made to 
 protect the ignorant and deluded multitude, who, in 
 hopes of gain and prizes, and not conversant in calcula- 
 tions, are drawn in by the office keepers" (<?). In the 
 case of Jaques v. Oolightly the plaintiff had insured 
 lottery tickets in various manners at the defendant's 
 office. He paid 64/. in premiums. Upon some chances 
 he was a winner ; on others a loser. The balance due 
 to him was 90/., which sum the defendant refused to 
 pay, alleging that the insuring was illegal ; but he none 
 the less insisted on retaining the premiums. On behalf 
 of the defendant it was contended that the plaintiff was 
 particeps criminis. But that contention failed, because 
 the statute did not render the contract on the part of 
 the insured more than void, and therefore, having ad- 
 vanced his premium without any consideration, he was 
 entitled to recover it back. Mr. Justice Blackstone 
 contrasted the Act in question with Barnard's Act (r), 
 
 (q) Jaques v. Golightly, 2 Bl. 1073. 
 (r) 7 Geo. II. c. 8, Chap. X.
 
 ILLEGAL TEANSACTIONS CIVIL OBLIGATIONS. 
 
 whereunder both parties to a forbidden stock-jobbing 
 transaction were made criminal and subject to penalties. 
 There was in that Act a provision which gave the loser 
 a right to an indemnity against the penalties if he sued 
 and recovered back the money lost; but in order to 
 enable him so to sue, it was, under the circumstances, 
 necessary to insert in the Act an express power to main- 
 tain the action. The case of Jaqucs v. Withy (s) is 
 similar. The principle was concisely stated by Lord 
 Mansfield in the case of. Browning v. Morris (#) : "Where 
 contracts are prohibited by positive statutes for the sake 
 of protecting one set of men from another set of men, 
 the one being likely to be imposed upon by the other, 
 then the parties are not in pari delicto, and in furtherance 
 of these statutes the person injured after the transaction 
 is finished and completed may bring his action and 
 defeat the contract." So, again, in that case the plain- 
 tiff was allowed to recover, as distinguished from his 
 winnings, moneys actually paid by him to the office 
 keeper of the lottery. In the recent case of Barclay v. 
 Pearson (tt~), Mr. Justice Stirling held that the compe- 
 titors in the missing word competition form a class pro- 
 tected by the statute, and that, in the absence of special 
 circumstances, each unsuccessful competitor is entitled, 
 notwithstanding that the competition is finished and the 
 prize winners ascertained, to bring an action at law for 
 the recovery of what was paid by him to the defendant, 
 and none the less so because the fund had been dis- 
 tributed. 
 
 Apart from questions of oppression or of statutory Test of .par 
 protection, the true test for determining whether or not 
 
 (a) Jaquca v. Withy, 1 H. Bl. 65. 
 (t) Browning v. Morris, 2 Cowp. 790. 
 
 (M) Barclay v. Pearson, (1893) 2 Ch. 154; 62 L. J. Ch. 636; 
 68 L. T. 709 ; 42 W. E. 74 ; 3 E. 388, and ante, p. 71.
 
 122 THE LAW OF GAMBLING. 
 
 the plaintiff and defendant are in pari delicto is stated to 
 be, whether the plaintiff can make out his case other- 
 wise than through the medium of, and by the aid of 
 the illegal transaction to which he was himself a party. 
 Thus, in Simpson v. Bloss (v), the plaintiff sued the 
 defendant for money lent. It appeared that at Epsom, 
 in 1813, the plaintiff made a ten guinea bet with Cap- 
 tain Bograve. The defendant advised him to increase 
 the bet to twenty-five guineas, and assumed a part of it 
 to the amount of ten guineas. The horse, backed by 
 the plaintiff and defendant, won. The plaintiff, at the 
 request of the defendant, immediately paid him his 
 share of the winnings, which, it was expected, would 
 be paid at Tattersall's on the following Monday. But, 
 in the meantime, Captain Bograve died insolvent, and 
 the bet was never paid. The plaintiff brought this 
 action to recover back the sum of ten guineas which 
 he had so advanced, and he contended that the payment 
 was on a condition which had failed. But it was decided 
 that the plaintiff could not recover, because it was im- 
 possible to prove failure of the condition, which was 
 that Bograve should make good the plaintiff's advance 
 to the defendant by paying the whole amount of the 
 bet to the plaintiff, without going into the illegal con- 
 tract (w}, in which all parties were equally concerned. 
 In the course of the judgment it was pointed out that 
 the case was on all fours with the illegal insurance case, 
 Ex parte Bett(x). 
 
 (v) Simpson v. Bloss, 7 Taunt. 246. 
 
 ' (w] Then illegal on account of the amount of the bet, see 
 p. 55, ante. 
 
 (x) Ex parte Bell, 1 M. & S. 751. See also Fivaz v. NicJiolls, 
 2 C. B. 501 ; 15 L. J. 0. P. 125 ; BegUe v. Phosphate Sewage 
 Company, 1 Q,. B. 679; 35 L. T. 350; 25 W. E. 85 (0. A.), 
 affirming L. E. 10 Q. B. 491 ; 44 L. J. Q. B. 233 ; 33 L. T. 470 ; 
 24 W. E. 115.
 
 ILLEGAL TKANSACTIOXS CIVIL OBLIGATIONS. 
 
 The case of Taylor v. Chester (>/} affords another in- 
 stance of the application of this test. The plaintiff 
 declared on the bailment of the half of a 50/. Bank of 
 England note to the defendant, to be redelivered on 
 request, alleging a refusal by the defendant to redeliver 
 such half note. The second count was for detinue of 
 the same half note. The defendant, after traversing 
 the delivery and detention of the note, and to the second 
 count denying that it was the property of the plaintiff, 
 pleaded separately and specially to both counts, to the 
 effect, that the half note in question had been deposited 
 by the plaintiff with the defendant by way of pledge, to 
 secure the repayment of money due and money then 
 advanced by the defendant to the plaintiff and then 
 due. The plaintiff joined issue on the defendant's pleas, 
 and specially replied with regard to the alleged debt, 
 that under the circumstances stated therein, the loan 
 was knowingly made for an illegal purpose. The plain- 
 tiff, in order then to meet the plea of a valid pledge, 
 was obliged to advance the illegality in his special re- 
 plication ; he could, therefore, only recover through the 
 medium and by the aid of the illegal transaction to 
 which he was himself a party. Under such circum- 
 stances, the maxim in pari delicto potior cst conditio pos- 
 sidentis was decisive of the case. 
 
 The subject of agency in relation to the illegal trans- Agency, 
 actions with which this book is concerned, is mostly 
 important in connection with that class of agents who 
 are stakeholders ; but the rights and obligations of 
 agents generally are material, and therefore will be 
 briefly indicated. 
 
 If an agent is employed to negotiate an illegal Agent not 
 
 liable for 
 
 (y) Taylor v. Chester, L. E. 4 Q. B. 309 ; 38 L. J. Q. B. 225 ; 
 21 L. T. 359; 17 W. R. 94.
 
 124 
 
 THE LAW OF GAMBLING. 
 
 breach of his 
 contract. 
 
 Agent can- 
 not recover 
 commission. 
 
 No recovery 
 of money 
 advanced for 
 illegal 
 purpose. 
 
 contract for his principal, the principal cannot recover 
 by action for a breach of contract. Thus, in the case 
 of Webster v. De Tastet (s), where a sailor on board a 
 ship was to receive slaves in lieu of wages, and em- 
 ployed an agent to insure them, it was held that as the 
 slaves were not the subject of a legal insurance, the 
 plaintiff could not recover against his agent for negli- 
 gence in not procuring such an insurance. The ille- 
 gality, however, must be clearly shown (a). Again, 
 an agent cannot recover from his principal commission 
 for work done where the transaction is illegal. In 
 the case of Josephs v. Pebrer(b), the plaintiff claimed 
 his commission for purchasing shares in an illegal 
 association. As the plaintiff claimed remuneration in 
 respect of services rendered for an illegal purpose, 
 it was held that he could not maintain his action. 
 But in Lyne v. Siesfeld(c), which was a similar action 
 for money paid, and for commission, part of the 
 transactions were lawful and part unlawful, Pollock, 
 C.B., said, " The causes of action to which the pleas are 
 pleaded are founded on distinct considerations, to show 
 that part is illegal does not afford an answer to the 
 whole," and the plaintiff was allowed to recover. 
 
 Again, neither principal nor agent can recover from 
 each other money that has been advanced for an illegal 
 purpose. In Bayntun v. Cattle (d), the plaintiff had 
 been a candidate for parliament, and the defendant had 
 acted as his agent. The plaintiff, in the course of his 
 candidature, had paid to the defendant considerable sums 
 of money for the purposes of the election. In this action, 
 
 (z) Webster v. De Tastet, 7 T. E. 157. 
 
 (a) Catlin v. Sell, 4 Camp. 183. 
 
 (b) Josephs v. Pebrer, 3 B. & C. 639 ; 5 D. & E. 542 ; 1 C. & 
 P. 341 and 507. 
 
 (c) Lyne v. Siesfeld, 1 H. & N. 278. 
 
 (d) Bayntun v. Cattle, 1 M. & E. 265.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 125 
 
 he sought to recover a balance from his agent. In 
 support of his action he put in evidence an account 
 rendered to him by the defendant ; this account showed 
 that the defendant's disbursements exceeded his receipts, 
 thereupon the plaintiff sought to falsify it. The jury 
 found as a fact, that the defendant had no moneys of 
 the plaintiff then in his hands ; then arose the further 
 question, whether the defendant could, as against the 
 plaintiff, rely on the illegal disbursements ; if the 
 defendant could prove that the plaintiff had knowledge 
 of the illegality of the payments at the time they were 
 made, or subsequently assented thereto, then the plain- 
 tiff was bound thereby. Alderson, J., said, " Did the 
 plaintiff know of, and authorize these illegal payments ? 
 If he did not, he has a right to recover the amount in 
 this action, for if a person entrusts money to an agent 
 to be by him laid out in legal disbursements, but the 
 agent chooses to lay out part of the money in disburse- 
 ments which are not legal, he cannot claim credit for 
 those disbursements when he comes to settle with his 
 employer." 
 
 The same rule applies where an agent without autho- 
 rity advances money to pay an illegal debt ; money so 
 advanced cannot be recovered (e). 
 
 But if an agent has received money from a third Money 
 party to be paid over to his principal, he cannot retain ^^Ho the 
 
 it on the ground that the money is the result of an us ? ? h j 8 
 
 principal may 
 
 illegal transaction between his principal and the third be recovered 
 party. Thus, in Tenant v. Elliott (/}, the defendant, 7E 
 as a broker, effected a policy of assurance on behalf of 
 
 (e) Amory v. Meryweather, 2 B. & C. 573 ; Steers v. Lashley 
 6 T. E. 61. 
 
 (/) Tenant v. Elliott, IB. & P. 3; approved in Thomson v. 
 Thomson, 7 Ves. 470.
 
 126 
 
 THE LAW OF GAMBLING. 
 
 The money 
 actually re- 
 
 principal. 
 
 the plaintiff. The policy was illegal, but the under- 
 writers nevertheless made a payment thereunder to the 
 defendant on behalf of the plaintiff. The defendant, 
 without any intimation from the underwiters, refused to 
 pay this money over to the plaintiff, who then brought 
 his action on account of such refusal. It was argued 
 ;or the defendant, that as the plaintiff could not have 
 succeeded in an action against the underwiters, he 
 could not recover against the defendant. But it was 
 held by Buller, J., that the illegality having been 
 waived by the underwriter paying over the money for 
 the use of the plaintiff, the defendant was not entitled 
 to retain it. 
 
 The case of Farmer v. Russell (g) , is another authority 
 on the same point. It is now well established that if 
 A., in pursuance of an illegal transaction between 
 himself and B., makes a payment to B.'s agent, B. may 
 recover from the agent, for as between them the receipt 
 of the money is upon a legal transaction. 
 
 There must, however, have been an actual receipt of 
 the money by the agent. Thus, an account stated 
 wnere i n the agent is credited with the amounts, will 
 no {; support the action of the principal. If the trans- 
 action were not illegal, it might be otherwise (h) , Again, 
 not only must there be an actual receipt, but the money 
 so received must have been paid to the use of the 
 plaintiff. For example, A. contracts with B. that in 
 consideration of B.'s starting an illegal lottery, A. will 
 pay him 100/. ; B. sets up the illegal lottery, A. then 
 pays the money to C. saying that it is the stipulated 
 reward for setting up the lottery, but directs 0. to 
 distribute it amongst the losers in the lottery, and 0. so 
 
 (0) Farmer v. Russell, 1 B. & P. 296. 
 (A) Edgar v. Fowler, 3 East, 222.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 127 
 
 applies it. B. could not maintain an action against C. 
 to recover the amount ({). 
 
 But if the agent is particeps criminis, the principal Where agent 
 
 T j ' is particeps 
 
 cannot recover from him. In pursuance of a iraud in 
 
 the guise of a scheme for establishing a colony on the 
 coast of Honduras, the agent, who was a party to the 
 fraud, negotiated a loan for the principal, but only paid 
 over a portion of the money which he had received on 
 behalf of his principal in respect of the loan. The 
 bubble subsequently burst, and the principal then brought 
 an action to recover the residue of the money in the 
 hands of his agent, but it was held that as the agent 
 was particeps criminis, the action could not be main- 
 tained (j). 
 
 Two or more people agree to carry through a given Stakeholders. 
 transaction, the event of which is uncertain, and they 
 further deposit money or other valuable things in the 
 hands of an outsider, to be held by him and disposed of 
 by him according as the event shall result in the one 
 way or the other : such a person is a stakeholder (k). It 
 now remains to consider the stakeholder's position, where 
 the event to be decided, depends on and arises out of an 
 illegal transaction. 
 
 The law has gone far in allowing a party to an Principal's 
 illegal transaction to rescind the contract, and to revoke rescission. 
 the stakeholder's authority to pay over the money 
 according to the original illegal agreement. True though 
 it may be, that the actual placing of the money in the 
 hands of the stakeholder for the illegal purpose, is a 
 part execution of such purpose, and the possession of 
 
 () Nicholson v. Gooch, 5 E. &B. 999; 25 L. J. Q. B. 137 ; 2 
 Jur. N. S. 303. 
 
 (j) Bousfuld v. Wilson, 16 M. & W. 185; 16 L. J. Ex. 44; 
 M'Grerjor v. Lowe, 1 E. & M. 57 ; 1 C. & P. 200. 
 
 (k) Seo post, p. 189.
 
 128 THE LAW OF GAMBLING. 
 
 the stakeholder is a direct result of the agreement to 
 execute such purpose, yet such part performance does 
 not destroy the principal's power of rescission. But 
 further, where the deposit of the stakes has been fol- 
 lowed by the determination of the event, the principal 
 can rescind, even at such a late stage, the agent's 
 authority to pay over the stakes, and can recover his 
 own deposit ; and should the stakeholder pay over after 
 receiving notice not to do so, he will be liable to repay 
 the objector's deposit. The power to rescind exists until 
 the event has been determined, and the stakes paid 
 over. 
 
 In Cotton v. Thurland (I) , the plaintiff deposited fif- 
 teen guineas with the defendant as the plaintiff's share 
 of a stake to be dealt with according to the event of a 
 boxing match between the plaintiff and another. The 
 battle was fought, but a dispute arose, and the defendant 
 was warned not to pay the money over until the parties 
 met and the matter was decided. The defendant 
 claimed to hold the money until the event was decided. 
 But it was held that there was neither equity nor con- 
 science on the part of the defendant, for if the contract 
 were illegal between the parties to the wager, yet as 
 long as the money remained in his hands he was 
 answerable to some one for it, and in the absence of a 
 decision of the event, he was under an obligation to 
 restore one half of the money to each party. 
 
 In Smith v. Bickmore (m), which was another case of 
 a stakeholder at a boxing match, the jury found as a 
 fact that the battle had been decided, and the defendant, 
 the stakeholder, obtained a verdict. But subsequently 
 a new trial was ordered on the ground that the plaintiff, 
 by reason of his demand for the return of his deposit 
 
 (Z) Cotton v. Thurland, 5 T. E. 405. 
 (m) Smithy. Bickmore, 4 Taunt. 474.
 
 ILLEGAL TKANSACTIONS CIVIL OBLIGATIONS. 129 
 
 before payment over, was entitled to recover back that 
 sum. On the facts, the case was distinguished from 
 those actions wherein one of the parties to a wager sues 
 another party thereto ; as where the assured sues the 
 underwriter for the return of premiums paid in respect 
 of illegal insurances. These cases were followed in 
 Bate v. Cartwright (n), which arose out of a foot-race, 
 then illegal on account of the amount of the stakes. 
 Again, in Hudson v. Terrill(o), the defendant stake- 
 holder paid over the whole stake after he had received 
 notice from the plaintiff not to pay over his deposit : 
 the defendant was ordered to repay. Again, in the 
 recent case of Barclay v. Pearson (p), one of the com- 
 petitors in the lottery, was held entitled to recover back 
 the shilling which he had deposited with the defendant 
 stakeholder, before the latter had distributed the stakes 
 to the winners. Mr. Justice Stirling, in that case, 
 pointed out the distinction which exists between such 
 cases where a stakeholder is concerned, and other cases 
 where there is no stakeholder, as in Kearley v. Thom- 
 son (q). 
 
 These cases of rescission, where a stakeholder is con- 
 cerned, show how far the Court will interfere to frustrate 
 an illegal transaction, and may not be without import- 
 ance in relation to the doctrine of Loivry v. Hourdieu, 
 and the cases following it, such as Taylor v. Bowers (r). 
 
 Every partnership, which has for its object something Illegal 
 the attainment of which is contrary to law, is an illegal 
 
 () Bate v. Cartwright, 7 Price, 540. 
 
 (o) Hudson v. Terrill, 1 Or. & M. 797 ; see also Robinson v. 
 Mearns, 6 D. & E. 26; Hastelow v. Jackson, 8 B. & 0. 221. 
 
 (p) Barclay v. Pearson, (1893) 2 Ch. p. 168. 
 
 (q) Kearley y. Thomson, 24 Q. B. D. 742 ; 59 L. J. Q. B. 288 ; 
 63 L. T. 150; 38 W. E. 614 ; ante, p. 118. 
 
 (r) Ante, p. 117. 
 
 O. K.
 
 130 THE LAW OF GAMBLING. 
 
 partnership ; it will suffice if the object be one forbidden 
 by statute and not otherwise illegal. For example, a 
 partnership in an adventure of setting up a lottery, or 
 of keeping a common gaming house, or a betting house, 
 or using a place for cock fighting or dog fighting, or 
 for holding a horse race contrary to the Racecourse 
 Licensing Act, 1879, would be illegal, and the contract 
 to form such a partnership would be illegal (s) . There- 
 fore, under the general rule, the contract would be 
 unenforceable either at law or at equity; the illegal 
 association might enter into transactions which in them- 
 selves were legal, and in respect of such collateral legal 
 transactions the members of the illegal firm might be 
 sued. But if the plaintiff could be proved to have been 
 aware of all the facts, which show that his demand 
 arises out of a transaction tainted with the illegality of 
 the partnership, he could not succeed () . 
 
 Illegality J3 U ^ foe effect of the illegality in the constitution of 
 
 destroys the . ... 
 
 rights of the firm is most strikingly illustrated by the destruction 
 f of the usual rights of the partners inter se. The 
 members have no rights of contribution or of appor- 
 tionment in respect of the partnership dealings and 
 transactions ; one member may have paid all the losses, 
 but he can obtain no contribution (u) ; one member 
 may have received profits, but the others cannot obtain 
 shares (v), not even where there is an express covenant 
 to pay such shares (w), or where the amount has been 
 
 (s) Duvergier v. Fellowes, 5 Bing. 248 ; 10 B. & C. 826 ; 1 01. 
 & F. 39. 
 
 (t) In re South Wales Atlantic Steamship Company, 2 Ch. Div. 
 763 ; 46 L. J. Ch. 177 ; 35 L. T. 294. 
 
 (w) Mitchell v. Cockburn, 2 H. Black. 380. 
 
 (v) Booth v. Hodgson, 6 T. E. 405. 
 
 (w) Lees v. Smith, 7 T. E. 338.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 131 
 
 determined by an arbitrator (#). As the late Master of 
 the Rolls said in the case of Sykes v. Beadon (y), "I 
 think the principle is clear that you cannot directly 
 enforce an illegal contract, and you cannot ask the 
 Court to assist you in carrying it out. You cannot 
 enforce it indirectly, that is, by claiming damages or 
 compensation for the breach of it, or contribution from 
 the persons making the profits realized from it " (z). 
 
 It would follow that an action for an account, brought 
 by one partner against the others, would not be main- 
 tainable in respect of the partnership dealings and 
 transactions. The case of Knowles v. Houghton (a), 
 arising out of an illegal insurance business, is a decision 
 in point. 
 
 The case of Sharp v. Taylor (b) is of importance in Sharp v. 
 regard to the foregoing principles. Sharp and Taylor, ay ' 
 subjects of this country, purchased an American-built 
 ship on a joint speculation, with a view of employing 
 her in the trade between the two countries until they 
 could sell her at a profit, and for that purpose they 
 caused her to be registered in America in the name 
 of Robertson, an American. Subsequently Robertson 
 stated that he should be obliged to assume the whole 
 bond fide ownership of the vessel. From the facts 
 
 (x) Aubert v. Maze., 2 Bos. & Pul. 371 ; the cases of Petrie v. 
 Hannay, 3 T. E. 418 ; Faikney v. Reynous, 4 Burr. 2070, are 
 overruled. See also De Begnis v. Armistead, 10 Bing. 107. 
 
 (y) Sykes v. Beadon, 11 Ch. Div. 170; 48 L. J. Ch. 522; 40 
 L. T. 243 ; 27 W. E. 464. 
 
 (z) See also Ilolman v. Johnson, 1 Cowp. 341 ; Cousins v. 
 Smith, 13 Ves. 542 ; Thomson v. Thomson, 7 Ves. 470. 
 
 (a) Knowles v. Houghton, 11 Ves. 168, overrules Watts v. Brooks, 
 3 Ves. 612 ; see further Armstrong v. Armstrong, 3 M. & K. 
 45 ; Harvey v. Collett, 15 Sim. 332. 
 
 (&) Sharp v. Taylor, 2 Phil. 801. 
 K2
 
 132 THE LAW OF GAMBLING. 
 
 appearing in the report, it seems that Sharp was willing 
 to surrender his interest in the ship to Robertson on 
 terms. In Lord Cottenham's judgment it is stated, that 
 Robertson's desire to become the actual owner as well 
 as the registered owner, was for the purpose of further- 
 ing a scheme between himself and Taylor, with the 
 object of excluding Sharp. But the Lord Chancellor 
 did not consider that part of the case material in con- 
 sidering the question between Sharp and Taylor. Sharp 
 alleged and proved that Taylor had attempted to exclude 
 him from his share of the speculation, and he required 
 an account and payment of his share of the realised 
 profits. Lord Cottenham was of opinion, that it was 
 immaterial whether the sums received arose from freight 
 or other profits due to Taylor and the plaintiff as owners 
 of the ship, or from payments made or allowed by 
 Robertson on account of the ship, of which he was the 
 real owner. Hence the question of ownership was 
 not determined. But this point is important, because 
 if Robertson was the real owner, then there was no 
 illegality in the transactions; for " the importation of the 
 goods in a ship American built, and not professing to 
 have any English registry, would not be illegal, and 
 the American owner might assign the freight to any- 
 one"^). In the absence of proof of illegality, the 
 presumption is against its existence. Hence the ratio 
 decidendi of this case, it is submitted, does not involve 
 any principle touching illegal partnerships. The Lord 
 Chancellor's judgment then contains, as stated by 
 Jessel, M. R., in Sykes v. Beadon (d), obiter dicta, which 
 as such are important. The defendant had set up the 
 illegality of the adventure in answer to the plaintiff's 
 bill : the Lord Chancellor said, " But the answer to the 
 
 (c) Sharp v. Taylor, 2 Phil, at p. 818. 
 
 (d) Sykes v. Beadon, 11 Oh. Div. at p. 196.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 
 
 objection appears to me to be this, that the plaintiff does 
 not ask to enforce any agreement adverse to the provi- 
 sions of the Act of Parliament. He is not seeking 
 compensation and payment for an illegal voyage : that 
 matter was disposed of when Taylor received the money; 
 and the plaintiff is now only seeking for payment of his 
 share of the realised profits. The violation of law sug- 
 gested was not any fraud upon the revenue, or omission 
 to pay what might be due ; but, at most, an invasion of 
 a parliamentary provision, supposed to be beneficial to 
 the shipowners of this country ; an evil, if any, which 
 must remain the same, whether the freight be divided 
 between Sharp and Taylor, according to their shares, or 
 remain altogether in the hands of Taylor. As between 
 these two, can this supposed evasion of the law be set 
 up as a defence by one against the otherwise clear title 
 of the other? In this particular suit, can the one 
 tenant in common dispute the title common to both ? 
 Can one of two partners possess himself of the property 
 of the firm, and be permitted to retain it, if he can show 
 that, in realising it, some provision in some Act of Par- 
 liament has been violated or neglected ? Can one of 
 two partners, in any import trade, defeat the other, by 
 showing that there was some irregularity in passing the 
 goods through the custom house ? The answer to this, 
 as to the former case, will be, that the transaction alleged to 
 be illegal is completed and closed, and will not be in any 
 manner affected by what the Court is asked to do, as between 
 the parties. Do the authorities negative this view of the 
 case ? The difference between enforcing illegal con- 
 tracts and asserting title to money which has arisen 
 from them is distinctly taken in Tenant v. Elliott (e) and 
 
 (e) Tenant v. Elliott, 1 Bos. & Pul. 3, 
 
 133
 
 134 THE LAW OF GAMBLING. 
 
 Farmer v. Russell (f), and recognised and approved by 
 Sir William Grant in Thomson v. Thomson (g) . But the 
 alleged illegality in this case was not in the freight 
 being paid to English subjects claiming as owners of 
 the ship, as in Campbell v. Innes" (/i). The Lord Chan- 
 cellor, in pointing out that the evil, if any, would remain 
 the same whether the freight was divided between 
 Sharp and Taylor, or remain in the hands of Taylor, 
 obviously was not advancing a consideration applicable 
 to illegal transactions (i). With regard to the passage 
 in italics, it may be mentioned that Mitchell v. Cockburn, 
 Sooth v. Hodgson, Lees v. Smith, Aubert v. Maze (k) 
 were not cited in the argument. The cases of Tenant v. 
 Elliott and Farmer v. Russell, it will be remembered, were 
 decided on the grounds that the third person, the de- 
 fendant, was notparticeps criminis (I), as it is submitted 
 the partners would have been had the transaction been 
 illegal. The above-quoted dicta were dissented from by 
 Jessel, M. R., in the case of Sykes v. Beadon (i) : " I 
 must say, speaking with some hesitation, as I always 
 do, when differing from any judgment of Lord Cotten- 
 ham's, that that reasoning, to my mind, is inconclusive 
 and unsatisfactory. The notion that because a transac- 
 tion 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 
 
 (/) Farmer v. Russell, 1 Bos. & Pul. 296. 
 (g) Thomson v. Thomson, 7 Ves. 470. 
 (h} Campbell v. Innes, 4 B. & Aid. 426. 
 (t) See Sykes v. Beadon, 11 Oh. Div. at p. 195. 
 (k) Ante, p. 130, cited with, approval in Mortimer v. M'Calln, 
 9M. &W. 636; 4 Jur. 172. 
 (/) Ante, pp. 125 et seq.
 
 ILLEGAL TRANSACTIONS CIVIL OBLIGATIONS. 135 
 
 highwaymen (w), where a robbery had been committed, 
 and one of the highwaymen unsuccessfully sued the 
 other for a division of the proceeds of the robbery." 
 Subsequently the learned judge states, that he was satis- 
 fied that no bill could be maintained by one partner in 
 a gaming house against another, for accounts on the 
 footing that the gaming house had been closed. 
 
 The case of Sharp v. Taylor was referred to with 
 approval in Becston v. Bccston (n); but in the latter 
 case the transactions were not illegal (o). 
 
 When a partner in an illegal partnership dies, and Personal 
 
 ,. , . , , . ,, ,. representative 
 
 Jus personal representative obtains possession 01 nis of deceased 
 assets, the latter cannot, as against the beneficiaries, par 
 refuse to account on the ground of the illegality of the 
 transactions in which the deceased was concerned ( p) 
 The personal representative cannot do so even when he 
 happens to have been a co-partner in the illegal part- 
 nership ( p} ; though, if no account had been settled, as 
 such partner he might decline to account (q) . 
 
 The position of illegal trusts is similar in a Court Illegal trusts. 
 of equity to that of illegal partnerships : the Court 
 declines to enforce them. In Ottley v. Browne (q) there 
 was a secret trust of an illegal nature, which the Court 
 declined to enforce (/). 
 
 (m) Everet v. Williams, Lindley on Partnership, 6th edit. 
 p. 101. 
 
 (n) Beeston v. Beeston, 1 Ex. Div. 13 ; 33 L. T. N. S. 700 ; 45 
 L. J. Ex. 230 ; 24 W. E. 96. See judgment of Amphlett, B. 
 
 (o) See also Bridger v. Savage, 15 Q. B. D. 363 ; 54 L. J. 
 Q. B. 464; 53 L. T. 129 ; 33 W. E. 891 ; 49 J. P. 725. 
 
 (p) Joy v. Campbell, 1 Sch. & Lef. 328. 
 
 (q) Ottley v. Browne, 1 BaU & Beat. 360. 
 
 (r) See also Thomson v. Thomson, 7 Ves. 470, and Barclay v. 
 Pearson, (1893) 2 Ch. Div. at p. 170.
 
 136 
 
 THE LAW OF GAMBLING. 
 
 CHAPTEE VII. 
 
 AN ACT TO AMEND THE LAW CONCERNING GAMES AND 
 WAGERS (8 & 9 VICT. C. 109). 
 
 THE title to this chapter, is the title of the most im- 
 portant Act, which came into operation on the 8th 
 August, 1845, whereunder the attitude of the law 
 towards wagers in general, and games of skill and 
 play for excessive amounts, was altered into what it 
 remains substantially at the present day, subject, how- 
 ever, to the Graining Act, 1892. 
 
 The preamble of the Act recites, that the laws thereto- 
 fore made in restraint of unlawful games had been found 
 of no avail to prevent the mischiefs which happen there- 
 from, and also apply to sundry games of skill from 
 Partial which the like mischiefs could not arise. It is therefore 
 
 33 P Hen!viII. enacted "that so much of the statute intituled 'The 
 c< 9 - Bill for maintaining Artillery and the debarring of 
 
 unlawful games' (33 Hen. VIII. c. 9), whereby any 
 game of mere skill, such as bowling, coyting, cloysh- 
 cayles, half-bowl, tennis, or the like, is declared an 
 unlawful game, or which enacts any penalty for play- 
 ing at any such game of skill as aforesaid, or which 
 enacts any penalty for lacking bows and arrows, or for 
 not making and continuing butts, or which regulates 
 the making, selling, or using of bows and arrows, and 
 also so much of the said Act as requires the mayors, 
 sheriffs, bailiffs, constables, and other head officers 
 within every city, borough, and town within this realm
 
 THE STATUTE 8 & 9 VICT. C. 109. 137 
 
 to make search weekly, or at the furthest once a month, 
 in all places where houses, alleys, plays, or places of 
 dicing, carding, or gaming shall be suspected to be 
 had, kept, and maintained, shall be repealed, and also 
 so much of the said Act as makes it lawful for every 
 master to license his or their servants, and for every 
 nobleman and other having manors, lands, tenements, 
 and other yearly profits for term of life, in his own 
 right or in his wife's right, to the yearly value of WO I. 
 or above, to command, appoint, or license, by his or 
 their discretion, his or their servants or family of his 
 or their house or houses to play at cards, dice, or tables, 
 or any unlawful game as therein more fully set forth, 
 shall be repealed; and that no such commandment, 
 appointment, or licence, shall avail any person, to exempt 
 him from the danger or penalty, of playing at any un- 
 lawful game, or in any common gaming house." 
 
 To legalise to all persons and at all times mere games Intention to 
 of skill, but to preserve untouched and undiminished gJmeTof 
 all the penalties which under the old statute then at- mere ski11 * 
 tached to the playing of unlawful games anywhere, or 
 playing at all games, whether lawful or unlawful, in a 
 common gaming house, and to deprive every person of 
 the power to license such playing or gaming, was the 
 intention of the legislature as is clearly and explicitly 
 stated. 
 
 The second section deals with the question of what Sect- 2 - 
 
 . , . . , , , i , i . Evidence of 
 
 evidence is required to prove that a house is a common a comm on 
 gaming house: "in default of other evidence proving 
 any house or place to be a common gaming house, it 
 shall be sufficient, in support of the allegation in any 
 indictment or information that any house or place is a 
 common gaming house, to prove that such house or 
 place is kept or used for playing therein at any unlaw-
 
 138 THE LAW OF GAMBLING. 
 
 ful game, and that a bank is kept there by one or more 
 of the players exclusively of the others, or that the 
 chances of any game played therein are not alike 
 favourable to all the players, including among the 
 players the banker or other person by whom the game 
 is managed, or against whom the other players stake, 
 play, or bet ; and every such house or place shall be 
 deemed a common gaming house such as is contrary to 
 law and forbidden to be kept by 33 Hen. VIII." 
 
 This matter will be pursued in Part II. of this book, 
 when treating of criminal processes. The foregoing 
 citation will suffice to show, that whilst the undesirable 
 restrictions of 33 Hen. VIII. on games of mere skill 
 were abolished, yet the law was strengthened for the 
 suppression of other games, by striking at common 
 gaming houses. The next seven sections made further 
 reference to the suppression of gaming houses (a). 
 Sections 10 to 14 (both inclusive) regulate licences for 
 keeping public billiard tables, bagatelle boards, or in- 
 struments used in any game of the like kind, but, 
 subject to such regulations, in no way affected the 
 legality of the games (b). 
 
 Partial repeal By section 15, it was enacted " that the statute in- 
 c 7 and* tituled ' An Act against deceitful, disorderly, and exces- 
 LlTsVeo 14 ' s * Ye Gaming ' ( 16 Car - ** c. 7), and so much of the 
 II. c. 34. statute intituled ' An Act for the better preventing of 
 Excessive and Deceitful Graming ' (9 Anne, c. 14) as 
 was not altered by the statute intituled 'An Act to 
 amend the Law relating to Securities given for Con- 
 siderations arising out of gaming, usurious, and certain 
 other illegal transactions' (5 & 6 Will. IV. c. 41), and 
 
 (a) For sects. 3 to 9, both inclusive, see post, Chap. XH. 
 (j) See post, Chap. XIV. ; Parsons v. Alexander, 5 E. & B. 263 ; 
 24 L. J. Q. B. 277 ; 1 Jur. N. S. 660.
 
 THE STATUTE 8 & 9 VICT. C. 109. 139 
 
 so much, of the statute intituled ' An Act to explain, 
 amend, and make more effectual the Laws in being to 
 prevent excessive and deceitful Graining, and to restrain 
 and prevent the excessive increase of Horse Races ' 
 (18 Greo. II. o. 34), as relates to the said Act of Queen 
 Anne, or as renders any person liable to be indicted 
 and punished for winning or losing, at play or betting, 
 at any one time, the sum or value of ten pounds, or 
 within the space of twenty-four hours the sum or value 
 of twenty pounds, shall be repealed . . . ." 
 
 This section, therefore, removes the restrictions on Removal of 
 
 i i i i /> /~i TT *r limit restric- 
 
 excessive play or wagering imposed by 16 Car. 11. c. 7, tiong> 
 9 Anne, c. 14, 18 Geo. II. o. 34, and the restrictions on 
 horse racing in the last-mentioned Act. It leaves the 
 operation of 5 & 6 Will. IY. c. 41, untouched, and, 
 therefore, the law with regard to securities remains as 
 explained in Chapter Y. But with regard to deceitful 
 and fraudulent gaming or wagering, by section 17, a 
 person guilty of such misconduct was declared to commit 
 the offence of obtaining money by false pretences. 
 
 However, the Act did not revert to the common law Sect. 18. 
 with regard to games and betting on the sides or hands 
 of the players for ready money, for by the 18th section 
 it was enacted : 
 
 " That all contracts or agreements, whether by parole Wagers void. 
 or in writing, by way of gaming or wagering, shall be 
 null and void; and that no suit shall be brought or 
 maintained in any Court of Law or Equity for recover- 
 ing any sum of money or valuable thing alleged to be 
 won upon any wager, or which shall have been deposited 
 in the hands of any person to abide the event on which 
 any wager shall have been made : Provided always, that 
 this enactment shall not be deemed to apply to any 
 subscription or contribution, or agreement to subscribe
 
 140 
 
 THE LAW OF GAMBLING. 
 
 Construction 
 of sect. 18. 
 
 Varney v. 
 Hickman. 
 
 or contribute, for or towards any plate, prize, or sum of 
 money to be awarded to the winner or winners of any 
 lawful game, sport, pastime, or exercise." 
 
 The remaining sections of the Act do not bear on 
 any question of construction of the 18th section, and do 
 not call for further notice at this point. The 18th 
 section splits into two portions, first the enacting part, 
 and secondly the proviso. In the case of Varney v. 
 Hickman(c), the enacting portion was critically and 
 grammatically examined : " The first part enacts ' that 
 all contracts or agreements, whether by parole or in 
 writing, by way of gaming and wagering, shall be 
 null and void.' It then goes on to enact, ' and that no 
 suit shall be brought or maintained in any Court of 
 Law or Equity, for recovering any sum of money or 
 valuable thing alleged to be won upon any wager, or 
 which shall have been deposited in the hands of any 
 person to abide the event on which any wager shall 
 have been made.' Now the first branch of this section 
 declares the contract to be null and void ; the second 
 prevents the winner from bringing an action to recover 
 the amount of his bet from the loser; and the third 
 prevents the winner from suing the stakeholder. It 
 certainly is true that the second branch is involved in 
 the first ; that is to say, that if the section had stopped 
 at the end of the first branch, it would have followed 
 that no action could be brought to enforce a contract so 
 declared to be void. But I apprehend there is nothing 
 unusual in an Act of Parliament stating a legal conse- 
 quence in that way. Then, the third branch, it is said, 
 will be idle and insensible unless there be given to it 
 the further effect of prohibiting the parties from recover- 
 
 (c) Varney v. Hickman, 5 0. B. 271 ; 5 D. & L. 364 ; 17 L. J. 
 0. P. 102.
 
 THE STATUTE 8 & 9 VICT. C. 109. 141 
 
 ing their deposits from the stakeholder upon a repudia- 
 tion of the illegal contract. It is true that that would 
 be giving to that clause a more extended construction 
 than that which treats it as a mere statement of the 
 legal consequence resulting from the first branch. But 
 I think if the second branch of the clause be looked at, 
 it is more consistent with the whole, to treat the third 
 as an exposition only, of the first ; the second branch, 
 as before observed, merely prohibiting the winner from 
 suing the loser for the sum won, and the third applying 
 to the case of an action brought by the winner against 
 the stakeholder for the whole sum deposited with him. 
 Although, perhaps, the third clause might have been 
 omitted as well as the second, the second being inserted, 
 the third became necessary also." In the case of Diggle 
 v. Higgs(d], Bramwell, L.J., said, "the clause of 
 section 18, ' that no suit shall be brought for recover- 
 ing money won upon a wager,' is unnecessary, and 
 might have been left out of the statute ; it seems to me 
 to be wholly superfluous." 
 
 The title of the Act refers to " games and wagers," Ambit of 
 and the preamble refers to the restraints on unlawful 
 gaming, and the previous sections dealt with gaming. 
 Section 18 deals with all contracts by way of gaming 
 and wagering. The general tenour of the Act would 
 have led one to expect that section 18, following the 
 then repealed statutes of Charles and Anne, would have 
 related solely to wagers connected with games, sports, 
 and pastimes, yet no such restriction is expressed, and 
 there is no implication of an intention so to limit the 
 beneficial operation of the Act. Thus it follows that 
 
 (d) Diggle v. lliggs, 2 Ex. Div. 422; 46 L. J. Ex. 721 ; 37 L. 
 T. 27 ; 25 W. E. 777 (C. A.), reversing 25 W. E. 607.
 
 142 THE LAW OF GAMBLING. 
 
 the difference transactions, which in Chapter I. were 
 
 shown to be wagers, are within the statute (e) . Any 
 
 contract which is a wagering one is within the Act. 
 
 Effect of, The common law whereunder wagers generally were 
 
 on the com- > -, , , -, -, 
 
 monlaw enforceable has thus been altered, simply by making 
 On valid wagers not illegal, but unenforceable. With regard to the 
 
 ii. On invalid effect of the Act on those wagers which, at common law, 
 were unenforceable, it is at least questionable whether 
 it has made any alteration. Such wagers as were un- 
 enforceable at common law, may have been so either 
 because they were void or were illegal. Certainly the 
 term illegal is frequently applied to the exceptional 
 wagers at common law as will have been seen in 
 Chapter II. But it must be admitted, that in the old cases 
 the use of the term illegal is not accurately contrasted 
 with that of void (/), the reason being either that the 
 contrast was unknown, or, being known, did not affect 
 the result of the actions commonly brought on wagers 
 by one party thereto against the other. The wagers 
 were not illegal in the sense of being mala prohibita and 
 of involving the sanction of a penalty. But many of 
 the wagers were, from their circumstances and subject- 
 matter, mala per se, and as such were illegal. In Da 
 Costa v. Jones (g), Lord Mansfield gave various instances 
 of the exceptional wagers, with regard to which he 
 
 (e) Orizewood v. Blane, 11 C. B. 526; 12 L. J. C. P. 46; Barry 
 v. Croslcey, 2 J. & H. 1 ; Cooper v. Neil, W. N. (1878) 128, and 
 the other cases cited in Chap. I. at pp. 11 20. 
 
 (/) See, for example, the citation from Collins v. Blantern, 
 ante, p. 107. In the Mogul Steamship Company v. M'Gregor, 
 Crow & Co., 23 Q. B. D. at p. 605, Esher, M.E., in his dissentient 
 judgment, said of an agreement: "The only reasons that it 
 can be held void, is because it is illegal." 
 
 (g) Da Costa v. Jones, 2 Cowp. 729.
 
 THE STATUTE 8 & 9 VICT. C. 109. 143 
 
 vigorously states, " You offend ; you misbehave by 
 laying such a wager." It must be open to serious 
 question, whether section 18 of the Act was intended to 
 make such wagers as were illegal at common law merely 
 void and null. There is, however, a decision in point. 
 In the case of Fitch v. Jones (A), a promissory note had Fitch v - Jones- 
 been given to secure a wager on the amount of the hop 
 duties, and formed the basis of the action between the 
 plaintiff as indorsee, and the defendant as maker. It 
 became necessary to decide whether the note had been 
 given for an illegal consideration, or for a merely void 
 consideration, equivalent in law to no consideration at 
 all. In Atherfoldv. Beard (i), a similar wager had been 
 held to be contrary to public policy, on the ground that 
 it was improper to discuss matters of revenue in any 
 place other than Parliament, and would be productive 
 of public inconvenience. Campbell, C. J., delivering 
 judgment in Fitch v. Jones, said : " The note was given 
 to secure payment of a wagering contract, which, even 
 before 8 & 9 Yict. c. 109, the law would not enforce ; 
 but it was not illegal. There is no penalty attached to 
 such a wager ; it is not in violation of any statute nor 
 of the common law, but is simply void, so that the con- 
 sideration was not an illegal consideration, but equiva- 
 lent in law to no consideration at all. Though it is said, 
 in Atherfold v. Beard (i), that a wager as to the amount 
 of the hop duty is contrary to public policy, it is not 
 there meant that it is punishable, but merely that it was 
 an idle wager on a matter in which the parties had no 
 concern, and the discussion of which might prejudice 
 others, like the wager on the sex of the Chevalier 
 
 (h) Filch v. Jones 5 E. & B. 238 ; 24 L. J. Q. B. 293 ; 1 Jur. 
 N. S. 854. 
 (t) Atherfold v. Beard, 2 T. E. 610.
 
 144 THE LAW OF GAMBLING. 
 
 D'Eon, and therefore was a wager not enforceable by 
 law, though, not a breach of any law." Erie, J., also 
 said : " I think the defendant might, without violating 
 any law, make a wager. If he lost, he might, without 
 violating any law, pay what he had lost, or give a note 
 for the amount." 
 
 But, on turning to the judgment in Athcrfold v. 
 Beard, it is found that Ashurst, J., with the assent of 
 the other judges, explicitly stated that wagers which 
 tend to introduce indecent discussion are illegal, and he 
 spoke of that particular wager as being "in itself 
 illegal," and further added that no admission of the 
 defendant that he had lost the wager could make " that 
 legal which is in its nature illegal." In Jones v. Ran- 
 dall (/), Lord Mansfield stated that the wager there in 
 question was not against any positive law, and that no 
 case could be found to show its illegality. " But it is 
 argued, and rightly, that notwithstanding it is not pro- 
 hibited by any positive law, nor adjudged illegal by any 
 precedents, yet it may be decided to be so on principles." 
 Such a principle would be that contracts contrary to 
 morality are illegal. An examination of the old cases 
 suggests the conclusion, that the learned judges had not 
 present to their minds the distinction between an illegal 
 and a void contract. A contract was void because it 
 was illegal ; a contract was valid because it was not 
 illegal. The existence of a tertium quid between an 
 illegal and a valid contract is not clearly (if at all) 
 recognized. 
 
 Submission as However, it is submitted that certain wagers were 
 sect. 18 on a ^ common law illegal so far that a promissory note, 
 
 wagers illegal given by way of payment thereunder, would be tainted 
 
 at common 
 
 law. 
 
 (j) Jones v. Randall, 1 Cowp. 37 ; Lofft, 383, 428.
 
 THE STATUTE 8 & 9 VICT. C. 109. 145 
 
 with illegality. Further, with submission, the conclusion 
 is put forward that section 18 of the Act has not de- 
 stroyed the taint of illegality which the common law 
 attached to such wagering contracts. Should this point 
 come before the courts for decision, reliance as against 
 the submission here made will probably be placed on a 
 dictum of Cairns, L. C., in the case of Diggle v. Ifiggs, 
 where, speaking of the first part of the section, he de- 
 scribes it as one " which applies to all contracts, lawful 
 and unlawful, by way of gaming and wagering" (k) ; and 
 also on that of the Privy Council in the case of Trimble 
 v. Hill (/), where it is stated, " This enactment annuls all 
 contracts by way of gaming and wagering, thus abolish- 
 ing the distinction between legal and illegal wagers, 
 which had frequently raised vexed questions for the 
 consideration of the courts." But those statements must 
 be read with regard to the circumstances of the par- 
 ticular cases, and it does not appear that the effect of 
 section 18 on wagering contracts illegal at common law 
 was directly in controversy. 
 
 The proviso contemplates the recovery of something, a The proviso, 
 subscription or contribution, by the winner or winners 
 of a lawful game, sport, pastime, or exercise. The first 
 question is, who is the winner ? The competition will 
 be conducted on the terms agreed upon between the 
 parties thereto. The whole agreement must be con- 
 sidered, both as directly expressed and as incorporating 
 rules it may be the Jockey Club rules of racing, or 
 the rules of boat racing, or other rules, according to the 
 subject-matter, as agreed upon by the parties. The 
 parties are bound by the whole of the rules or regula- 
 tions which constitute their agreement. The terms of 
 
 (k) Diggle v. Higgs, 2 Ex. Div. at p. 427. 
 (I) Trimble \. Hill, L. E. 5 App. Gas. at p. 344. 
 O. L
 
 146 THE LAW OF GAMBLING. 
 
 the agreement are open to alteration by the consent of 
 all parties : but short of that, there will be difficulty in 
 showing a binding waiver of any of the rules and regu- 
 lations. 
 
 Alleged Thus, in Weller v. Deakin(m). it was one of the con- 
 
 waiver. t \ / ' 
 
 ditions that the horses should have been "regularly 
 hunted " with certain hounds. The plaintiff endeavoured 
 to set up a waiver of that condition. He had remarked 
 to the defendant, the clerk of the course, before the race, 
 that " he hoped he was satisfied about the mare's hunt- 
 ing," and that the defendant had replied " Quite so : 
 you run your mare, we have arranged that." But it 
 was held that " It must be shown that the clerk of the 
 course had authority from the other subscribers to waive 
 the conditions of the race. There was a printed proposal 
 to run horses on certain terms; what the clerk said, 
 after this was published, cannot have the effect of waiving 
 any of those terms, without all the other subscribers 
 have agreed to it." In Marryat v. Broderick (n), a 
 race had been run under an agreement that two named 
 persons should act as stewards : neither were present at 
 the race, but one sent a deputy. It was held that there 
 could be no valid arbitration without both stewards 
 concurring, and that no agreement had been proved that 
 the parties had agreed to submit to the sole decision of 
 the one steward who sent a deputy ; but that clear proof 
 would be required, that the disputing parties, and pro- 
 bably also the clerk of the course, had submitted to his 
 authority. In the case of Dines v. Wolfe (o), the agree- 
 ment contained (inter alia) the following stipulations : 
 
 (m) Wetter v. Dealcin, 2 0. & P. 618. 
 (n} Marryat v. Broderick, 2 M. & W. 369 ; 1 Jur. 242. 
 (o) Dines v. Wolfe, L. E. 2 P. C. 288; 5 Moore, P. C. 0. N. S. 
 382; 20 L. T. 251.
 
 THE STATUTE 8 & 9 VICT. C. 109.- 
 
 The match to be run under the Australian Jockey Club 
 Eules, and under the auspices of that Club, and the 
 defendant to act as stakeholder. It was a common, 
 though not proved to be an inflexible rule of the Aus- 
 tralian Jockey Club, that their treasurer should act as 
 stakeholder. Prior to the race, all the persons other 
 than the plaintiff were agreeable that the money should 
 be deposited with the treasurer, but the plaintiff would 
 not consent. After the event, the plaintiff contended 
 that the race was not run under the agreement. But it 
 was held against him, that, if under the agreement the 
 money ought to have been deposited with the treasurer, 
 he could not take advantage of his own non-compli- 
 ance with the rules to demand his money back ; or, that, 
 if under the agreement he had appointed the defendant 
 stakeholder, and thereby expressly excluded the rules of 
 the Jockey Club, there had been no breach of the actual 
 agreement. In the case of Evans v. Summers (p), an 
 objection was taken to the plaintiff's horse ; but, under 
 the conditions, the plaintiff might have said that the 
 objection was out of time. He did not. Subsequently, 
 after the committee had decided against him, he tried 
 to take the objection ; Blackburn, J., " thought, on 
 the whole, that the rule as to time was for the benefit 
 of the person objected to, and which he might, if he 
 thought proper, waive, and having waived he could not 
 now set it up." 
 
 If the agreement between the parties be sued on, it 
 will, of course, require to be stamped before being ad- 
 mitted as evidence (q). 
 
 In anticipation of disputes arising as to who is the Disputes as to 
 
 winner. 
 
 (p) Evans v. Summers, 35 J. P. 761. 
 
 (q) Evans v. Pratt, 3 M. & G. 759 ; 4 Scott, N. E. 378 ; 1 D. 
 N. S. 505; 6 Jur. 152. 
 
 L2
 
 148 . THE LAW OF GAMBLING. 
 
 winner the agreements provide, as a general rule, a 
 machinery for the summary determination of such 
 questions. The parties agree to be bound by such de- 
 termination. Take, for instance, a horse race. The race 
 is started according to the agreement, the judge decides 
 the order of passing the winning-post, and there having 
 thus been a race, the jurisdiction of the stewards or 
 the referee, as agreed, to settle all disputes arises. As- 
 suming the officials have, as agreed, exercised their 
 respective jurisdictions, there will be no possibility of 
 disputing their decisions. 
 
 But questions have been brought before the Courts as 
 to whether the jurisdiction has been exercised, or, if 
 exercised, whether properly exercised. In the above- 
 metioned case of Marryat v. Broderick, the two 
 stewards had not acted, and, under the circumstances, 
 the decision of the one was not binding. In the case of 
 Brown v. Overbury (r), certain persons had subscribed to 
 a steeplechase ; the defendant was the treasurer of the 
 race, and the plaintiff sought to recover from him 261., 
 being the amount of the stakes which he alleged had 
 been won by his horse. According to the articles of 
 agreement, any dispute as to the race was to be decided 
 by the award of four stewards. A dispute arose. Two 
 stewards were in favour of holding the plaintiff's horse 
 the winner, and two in favour of another horse. The 
 plaintiff contended that he was entitled to have the 
 question settled by a jury. Alderson, B., said, "Every 
 contract must be determined according to the circum- 
 stances. This is one of racing, and the universal prac- 
 tice has been, that, in order to ascertain who is to have 
 the stakes, it must first be determined who is the winner, 
 not in the opinion of the jury, but of the persons ap- 
 
 (r) Brown v. Overbury, 11 Ex. 715 ; 25 L. J. Ex. 169.
 
 THE STATUTE 8 & 9 VICT. C. 109. 149 
 
 pointed to decide it, namely, the judges or the stewards 
 .... In this case the stewards have come to no decision, 
 
 but it may be that they will when they meet again 
 
 Further he (the plaintiff) is not entitled to get back his 
 contribution, . . . for he has not shown that he is unable 
 to get a decision from the stewards." Martin, B., states 
 that a decision of the stewards, even though erroneous 
 but not fraudulent, would bind the parties, and prevent 
 any question being submitted to a jury. In Ellis v. Stewards are 
 Hopper (s), the plaintiff had alleged that his horse was tors in the 
 winner because the defendant's had "crossed" another 1 eg 
 horse. It had been provided that all disputes should 
 be settled by the stewards. There were four stewards, 
 a majority of whom decided for the plaintiff; but one 
 of the majority had made a bet against the defendant's 
 horse. It was contended that this fact invalidated the 
 decision on the ground of interest in one of several arbi- 
 trators. It was held on the interpleader issue, that the 
 stewards were not judges of Courts of law, nor even 
 arbitrators in the strict legal sense, and the decision 
 was upheld. Again, in Parr v. Winteringham (t), fol- 
 lowing the last case, it was held that the stewards are 
 not in the position of arbitrators between the persons 
 who have horses in the race. " They are functionaries 
 of a very peculiar nature with peculiar powers." As 
 long as their opinion has been fairly and honestly given, 
 it is enough, whether that opinion was severally or 
 jointly given, and the decision of the majority prevailed 
 over that of the minority. 
 
 In the case of Benbow v. Jones (u), the steward being 
 
 () Ellis v. Hopper, 28 L. J. Ex. 1 ; 3 H. & N. 766; 4 Jur. N. 
 S. 1025 ; 7 W. E. 15. 
 
 (<) Parr v. Winteringham, 28 L. J. Q. B. 123; 1 El. & El. 394 ; 
 5 Jur. N. S. 787 ; 7 W. E. 288. 
 
 () Benbow v. Jones, 14 M. & W. 193 ; 14 L. J. Ex. 257.
 
 150 THE LAW OF GAMBLING. 
 
 empowered to decide all disputes, intimated, before the 
 race, to the plaintiff, who had entered his horse for a 
 steeplechase, that his intended rider, W., was a " pro- 
 fessional jockey," and that his riding would disqualify 
 the horse. However, W. rode the horse, and came in 
 first. But the steward the next day directed the stakes 
 to be paid to the owner of the horse second past the 
 post. The plaintiff contended that the decision was 
 informal and irregular, being pronounced before the 
 race was run, and that W. was not a professional 
 jockey. Alderson, B., said, " It would be very strange 
 to say that it is to be held that all proceedings before 
 the stewards of races are to be according to the strict 
 rules of law ; that there is to be a point regularly raised 
 before him, and parties heard upon it I suppose by 
 counsel and a formal decision on the hearing. It 
 would next be said that the evidence must be given on 
 oath. The truth is, that the parties mean that the 
 matter shall be subject to the decision of the steward ; 
 and that if he decides in fact, that shall be final." 
 Again, in Smith v. Littkdale (v), where the stewards 
 had decided that a horse had not been hunted in a 
 genuine and bond fide manner, it was held that, under 
 the conditions giving final power to decide disputes, 
 they " were absolute judges of fact and law." 
 Stewards In the case of Newcomen v. Lynch (?), which was an 
 
 must observe . . . , .. , s *. 
 
 thecondi- interpleader issue, arising out 01 a dispute on a race 
 
 tions. keld under the Irish National Hunt Steeplechase and 
 
 Irish Turf Club Eules, for prizes, including a plate of 
 250J., "weight for age four, 12 st.; five, 12 st. lOlb.; 
 six and aged, 13 st.," the question was raised whether 
 
 (v} Smith v. Littledale, 15 W. E. 69. 
 
 (w) Newcomen v. Lynch, Ir. E. 9 C. L. 1, affirmed on appeal, 
 Ir. E. 10 C. L. 248.
 
 THE STATUTE 8 & 9 VICT. C. 109. 151 
 
 or not the stewards had waived a condition about 
 " wrong nominations." The defendant's horse was 
 entered as " aged :" he came in first, and the plaintiff 
 objected that he was entered under a false description. 
 The material rules were the following: " The decision of 
 the stewards shall be final in everything connected with 
 steeplechasing, and there is no appeal whatever to a 
 Court of law." " The age of the horse must be men- 
 tioned when horses of different ages are admitted." 
 "If any horse be entered by a false description, he 
 shall be disqualified." The fact was, that the de- 
 fendant's horse was six years : the stewards held that 
 the weights being the same for six years and for aged, 
 the horse was not disqualified. In the Queen's Bench 
 the majority of the judges held that the stewards were 
 not authorized to decide, after a race was run, that the 
 non-observance of some of the rules according to which 
 the race was agreed to be run was immaterial, and on 
 that ground to award the stakes to the party who had 
 violated the rules. On appeal in the Exchequer Chamber, 
 the validity of that principle was admitted ; but the 
 judges differed from the Court below as to its applica- 
 tion to the facts ; the stewards had not set aside or dis- 
 pensed with any rule, they had construed the rule about 
 naming the age, in connection with that about false 
 description. In a matter of interpretation their deci- 
 sion was binding. 
 
 In Carr v. Martinson (x) , it was decided that the judge's Conditions 
 jurisdiction did not arise until the race had been run. j 
 The plaintiff and one Homer entered into a specific 
 agreement to run one horse against another on a speci- 
 fied day, W. Cottingham to be the starter, and another 
 named person the judge. The starter did not appear 
 
 (x) Carr v. Martinson, 1 El. & El. 456 ; 28 L. J. Q. B. 126 ; 
 5 Jur. N. S. 788; 7 W. E. 293.
 
 152 THE LAW OF GAMBLING. 
 
 on the ground, and Horner refused to run the race, 
 but the plaintiff's horse walked over the course and was 
 declared by the judge to be the winner. The plaintiff 
 demanded the stakes from the defendant, who was 
 the stakeholder. Lord Campbell, C.J., said, "If the 
 plaintiff's horse had been started by the starter ap- 
 pointed, and had trotted over the course, and had been 
 declared by the judge to be the winner, that judgment 
 would have been final : but I think his power to act as 
 judge never arose, in consequence of the race never 
 having been run. It was made a condition precedent 
 to the running of the race, that W. Cottingham should 
 be the starter, and therefore as that condition was not 
 performed, the judge had no power to give any decision 
 upon the matter." It was held further, that on demand, 
 the plaintiff was entitled to have his own contribution 
 to the stakes returned. 
 
 Sadler v. A somewhat similar point arose in the case of Sadler 
 
 v. Smith (y) . The plaintiff deposited a stake with the 
 defendant with a view to a race between the plaintiff 
 and one Kelley, upon the terms " that the race was 
 to be a rightaway sculler's race, and the decision of 
 the referee to be final." In such a race it was the 
 practice for the men to start themselves, but in the 
 event of the men not starting through default of either 
 or both, the referee was entitled to interfere. Sadler 
 at the time appointed made default in starting ; Kelley 
 complained to the referee : the referee gave an order 
 that Kelley should inform the plaintiff that if he did 
 not start Kelley was to row over the course without 
 him. Kelley alone rowed over the course, and the 
 referee, without communication with or inquiry of the 
 
 (y) Sadler v. Smith, L. E. 4 Q. B. 214 ; 38 L. J. Q. B. 91 ; 
 19 L. T. 779 ; 17 W. E. 371 ; affirmed on appeal, L. E. 5 Q. B. 
 40; 39 L. J. Q. B. 17 ; 21 L. T. 502 ; 18 W. E, 148.
 
 THE STATUTE 8 & 9 VICT. C. 109. 153 
 
 plaintiff, awarded the stakes to Kelley. The plaintiff 
 sued the defendant for money received to the use of the 
 plaintiff. Cockburn, C. J., left the following questions 
 to the jury : 1 . Did Sadler intend to start ? A. He did. 
 2. Had the referee, by actual observation or otherwise, 
 the means of knowing whether Sadler intended to start 
 or not ? A. He had not. 3. The order of the referee 
 being, if Sadler would not start, Kelley should row over 
 the course, and that this should be communicated to 
 Sadler; was it so communicated? A. No. 4. Was a 
 fair opportunity afforded to Sadler to start ? A. No. 
 The Chief Justice directed a verdict for the plaintiff, 
 giving the defendant leave to move to enter a nonsuit 
 or a verdict for the defendant, on the ground that the 
 referee's decision was, for the purposes of the action, 
 final. A rule was accordingly obtained ; but it was 
 decided that the referee's order for a start was con- 
 ditional on its communication to Sadler, and without 
 such communication there was no start, and therefore 
 no race, and consequently no jurisdiction for the re- 
 feree to award the stakes. On appeal, this decision 
 was upheld. Willes, J., said : " I am clearly of opinion, 
 that even if the referee had had insufficient means of 
 determining whether Kelley had communicated the 
 order to start to the plaintiff, yet, provided he had 
 decided that a communication was made, although, in 
 fact, it was not made, his decision would have been 
 conclusive and final ; but it appears to me that he took 
 no steps to ascertain whether Kelley had communicated 
 his order to the plaintiff. He ought not, without ascer- 
 taining that cardinal fact, to have ordered the stakes 
 to be paid over to Kelley." Thus, according to this 
 judgment, the referee has jurisdiction to decide the 
 existence or non-existence of that which was a con-
 
 154 THE LAW OF GAMBLING. 
 
 dition precedent to his jurisdiction. This decision 
 shows that the stakeholder should be extremely careful 
 to be satisfied that there has been a due determination 
 by the competent authority before he pays over the 
 stakes. 
 
 Determina- When the agreement does not provide for the settle- 
 tionbythe me nt of disputes, or where the machinery provided 
 proves absolutely incompetent, the Courts, with the 
 assistance of jury, will decide the disputes and deter- 
 mine the winner. On questions of construction of 
 ambiguous terms in the written agreement, parol evi- 
 dence will be admitted. The following terms have 
 Technical been the subject of judicial decision : " Entrance 
 racing terms. money ( 2 ) j added money " ( fl ) t regularly hunted " (b) , 
 
 " across country" (c), " trotting match " (d), " gentle- 
 man rider " (e), " Play or Pay," *. e., " P. P. " (/) . In 
 Daintree v. Hutchinson, which involved the construction 
 of the words following : " the said match to be run on 
 Wednesday during the Newmarket February Meeting, 
 1841. P. P." the Court received evidence to show 
 that the Newmarket meetings were meetings of a 
 coursing club, and of the practice as to the dates 
 of the meeting, and held that, according to its true 
 construction, the meeting was in the nature of a move- 
 able feast, not fixed definitely for a particular day, but 
 dependent in some degree on circumstances. 
 
 (z) Dowson v. Scriven, 1 H. Bl. 219. 
 
 (a) Applegarth v. Golley, 10 M. & W. 723; 12 L. J. Ex. 34 ; 7 
 Jur. 18. 
 
 (6) Wetter v. Deakin, 2 C. & P. 618. 
 
 (c) Evans v. Pratt, 3 M. & Gr. 759 ; 4 Scott, N. E. 378 ; 1 D. 
 N. S. 505 ; 6 Jur. 152. 
 
 (d) Robson v. Hall, Peake, 172. 
 
 (e) Walmsley y. Matthews, 3 M. & Gr. 133 ; 3 Scott, N. E. 584 ; 
 5 Jur. 508. 
 
 (/) Daintree y. Hutcliinson, 10 M. & W. 85; 6 Jur. 39.
 
 THE STATUTE 8 & 9 VICT. C. 109. 
 
 In the case of Crofton v. Colgan (g) a contention that in Winners. 
 a given race there could only be one winner within the 
 meaning of the proviso was disallowed, and it was held 
 that there was nothing in the clause requiring that the 
 entire sum subscribed should be awarded to the first 
 horse, or to prevent the Court from considering both 
 the first and second horses winners, each entitled to a 
 portion of the sum subscribed. But in Batson v. New- 
 man (^), which arose out of a trotting match against 
 time, Mellish, L. J., asked, " How could there be a 
 ' winner ' here ? Does not the word import competi- 
 tion between two or more?" and in his judgment he 
 said : " There can only be a winner when two or more 
 persons are to compete in doing something." In that 
 case the loser was the loser of a wager, and there was 
 no loser of a race. In the case of Incin v. Osborne and 
 others ('), the defendants had no proprietary interest 
 in the horse which they nominated to run against the 
 plaintiff's horse. If the defendants had won, it would 
 have been on account of their good fortune in naming 
 the successful horse, and " the contract would have 
 depended on that accidental circumstance, and not on 
 the running of the race." The defendants, therefore, 
 could not be winners within the meaning of the pro- 
 viso. This decision would prevent breeders recovering 
 the breeders' stakes in an action at law. 
 
 The proviso states that the enactment does not apply what the 
 to any subscription or contribution, or agreement to 
 subscribe or contribute, for or towards any plate, prize, 
 or sum of money to be awarded to .... Having 
 determined the winner, the second question is what 
 
 (g) Crofton v. Colgan, 10 Ir. C. L. E. 133. 
 
 (h) Batson v. Newman, 1 C. P. D. 573 ; 25 W. E. 85. 
 
 (') Irwin v. Oeborne, 5 Ir. C. L. E. 404.
 
 156 THE LAW OF GAMBLING. 
 
 Plate. may he recover under this proviso. The term " plate," 
 
 under the Rules of Racing, is a prize in money not 
 made up by the subscriptions of the competitors. It 
 thus differs essentially from the stake or prize contri- 
 buted by the competitors themselves, for, quoad their 
 own contributions, they are entering into a wager ; but 
 with regard to the plate or added money, the givers of 
 that are not parties to the wager, they must lose their 
 contributions, and do not take any chance of winning 
 from the competitors. Hence, this distinction with 
 regard to " added money " was observed in the case 
 of Applegarth v. Colley (&). But the term "prize" 
 has no such definite meaning, and is as general as 
 " sum of money." 
 
 This proviso was first construed in the case of Batty 
 v. Marriott (/), which has since been overruled. In 
 that case two persons agreed to run a foot-race, and 
 each of them deposited 10/. with a third person on con- 
 dition that the whole 201. should be paid over to the 
 winner. The loser sought to recover his deposit. For 
 the loser it was contended that the race was illegal, 
 and not legalized by the proviso, and that therefore 
 the loser could rescind the contract and demand his 
 deposit. For the defendant it was contended that the 
 contract was legal, and fell within the proviso. To 
 maintain that position reference was made to a distinc- 
 tion taken in Connor v. Quick (m) between running a 
 horse for 50 L, which was lawful, and betting on the 
 side of the horse, which was not, and the case of Evans 
 
 (V) Applegarth v. Colley, 10 M. & W. 723 ; 12 L. J. Ex. 34 ; 7 
 Jur. 18. 
 
 (1) Batty v. Marriott, 5 0. B. 818 ; 17 L. J. C. P. 215 ; 12 
 Jur. 462. 
 
 (TO) Eeferred to in Clayton v. Jennings, 2 Bl. 706.
 
 THE STATUTE 8 & 9 VICT. C. 109. 157 
 
 v. Pratt (n) was relied on. In Evam v. Pratt the com- 
 petition was a steeplechase, the owners backing their 
 horses in named sums. The whole of the question dis- 
 cussed in that case was the legality of a steeplechase, 
 being a match of over 50/., and turned on the effect of 
 18 Gbo. II. c. 34, after the repeal of 13 Geo. II. c. 19 
 by 3 & 4 Yict. c. 5. It was not suggested that the 
 match amounted to a wager, and qua wager was illegal 
 under 9 Anne, c. 14. It was contended that such 
 matches were legal, and differed from collateral wagers, 
 and that such being the law prior to 8 & 9 Yict. c. 109, 
 this statute intended, by the operation of the proviso, 
 to maintain the distinction. The judges in Batty v. 
 Marriott considered, that the proviso was inserted out 
 of regard to horse racing and such like lawful sports. 
 Wilde, 0. J., said : " The race, not being an illegal 
 game, and the money having been subscribed by these 
 two persons, the question is, whether the case falls 
 within the enacting part or the proviso. There may 
 possibly be a difference when the money is not placed 
 in the hands of a stakeholder. The difficulty is in 
 saying when two persons and only two mutually 
 agree to put down a stake, the whole of which is to be 
 paid over to the winner, in what respect that differs 
 
 from a wager Here two sums of 10/. each 
 
 have been deposited by two persons to abide the event 
 of a lawful race, the whole to be awarded to the 
 winner. The case is clearly one which falls within the 
 proviso, and the Court can only deal with the precise 
 words before them." Coltman, J., having pointed out 
 the anomaly that the contract should be valid, and yet 
 any security given for the amount illegal, said : " The 
 
 () Evans v. Pratt, 3 M. & Gr. 759 ; 4 Scott, N. E. 378 ; 1 D. 
 N. S. 505; 6 Jur. 152.
 
 THE LAW OF GAMBLING. 
 
 proviso evidently contemplated the case of a sweepstakes 
 where several persons subscribe to a stake or fund, the 
 whole of which becomes, under certain regulations, the 
 property of the winner. It does not define the number 
 of the subscribers or contributors ; it seems to me to 
 make no difference whether the number be two or fifty." 
 Cresswell, J., agreed, and in the course of his judgment 
 said : " It might have been different if contributions 
 to a plate only had been mentioned ; but the words are 
 plate, prize, or sum of money." It follows from this 
 decision that such contracts are valid, and that the 
 winner can sue for the whole stakes, and that the parties 
 have no more power to rescind such a contract than any 
 other valid contract. 
 
 The test suggested is that there must have been an 
 actual deposit. But that overlooks the words, " agree 
 to subscribe or contribute." The decision makes an 
 indefinite inroad into the enacting part of the section. 
 An examination of the authorities discloses no case in 
 which the winner has recovered the whole stakes, and 
 only one in which one of the parties has been denied a 
 power to rescind, as would have existed had the contract 
 been void. 
 
 In Parsons v. Alexander (o), Campbell, 0. J., said : 
 " But for Batty v. Marriott, I should have said that 
 proviso was confined to cases in which persons contri- 
 buted to a plate or something analogous to a plate." 
 Coleridge, J., said : " I should have thought it was con- 
 fined to cases in which a prize is made up by sub- 
 scriptions ; but there is certainly nothing in the words 
 to prevent some of the subscribers from playing." 
 Crompton, J., also expressed difficulty with regard to 
 
 (o) Parsons v. Alexander, 5 E. & B. 263 ; 24 L. J. Q. B. 277 ; 
 1 Jur. N. S. 660.
 
 THE STATUTE 8 & 9 VICT. 0. 109. 159 
 
 Batty v. Marriott. On the facts, Parsons v. Alexander 
 was distinguishable from Batty v. Marriott, seeing that 
 there was no actual deposit or holding forth as having 
 in effect contributed, and it therefore became unneces- 
 sary to dissent from that case. The construction sug- 
 gested is a subscription or contribution to a plate, or 
 something ejusdem generis (that is to say), "added 
 money." 
 
 Again, in Brown v. Overbury (p), there was a dispute 
 as to who was the winner of a steeplechase, and as the 
 plaintiff, under the conditions of the race, was unable to 
 prove that he was the winner, it became unnecessary to 
 decide whether or not, if he had been the winner, he 
 could have recovered the stakes. But the winner was 
 held not to be entitled to rescind until he could show 
 that performance of the contract was impossible. So 
 far the case is a decision following Batty v. Marriott. 
 
 In the case of Irwin v. Osborne and others (<?), where 
 the plaintiff had agreed with the three defendants that 
 a match should be made between a mare, the property 
 of M., and a mare the property of the plaintiff, and 
 that the party nominating the winner should receive 
 from the others 100/., it was held that there was no 
 subscription, no contribution, and no deposit. The 
 action was, in fact, brought by the plaintiff to recover 
 100/., which was the penalty agreed to be paid by any- 
 one making default in causing the mare nominated by 
 him to run. The penalty was, in effect, damages for 
 breach of a wagering contract which fell within the first 
 part of section 18. In the case of Crofton v. Colgan (r) t 
 the claim arose out of the sale of a horse for a fixed sum 
 
 (p) Brown v. Overlury, 11 Ex. 715; 25 L. J. Ex. 169. 
 (q) Irwin v. Osborne, 5 Ir. C. L. E. 404. 
 (r] Crofton v. Vulgan, 10 Ir. C. L. E. 133.
 
 160 THE LAW OP GAMBLING. 
 
 of money plus a share of the horse's winnings. The 
 horse won a race in relation to which five persons had 
 subscribed 31. each on their respective horses, and the 
 stewards added 30/., making " the whole plate " 451. 
 The horse won, and the defendant received the win- 
 nings, but he contested the plaintiff's right to recover a 
 share. The case presents two difficulties : first, no dis- 
 tinction seems to have been drawn between the 30/. 
 added money, and the 151. subscribed by the competi- 
 tors ; secondly, even on the assumption that the money 
 received by the defendant could not have been recovered 
 by him at law, it does not follow that a legal obligation 
 would not exist as between the plaintiff and the defen- 
 dant on their contract of sale and purchase. In the 
 case the 451. is treated as constituting " the whole plate," 
 and to be within the proviso of this section. A curious 
 contention was advanced on behalf of the defendant, 
 namely, that the winnings in question did not fall 
 within the proviso, because the whole plate did not in 
 its entirety fall to the first horse, owing to the fact that 
 there was a second prize. The Court held that such fact 
 did not suffice to take the transaction outside the pro- 
 viso, whereunder it was not necessary that the winner 
 should receive every sixpence of the sum subscribed. 
 
 The next case is that of Dines v. Wolfe (), which has 
 been cited, supra, as an authority with regard to waiver 
 of conditions. The dispute arose out of an alleged dis- 
 qualification of the winner of a match between two 
 horses, which respectively had been backed to the 
 amount of 500/. The plaintiff's horse lost, and the 
 plaintiff then, relying on the alleged disqualification, 
 claimed the whole stake (1,0 OO/.). The stewards of the 
 
 () Dines v. Wolfe, L. E. 2 P. C. 280 ; 5 Moore, P. 0. 0. N. S. 
 382 ; 20 L. T. 251.
 
 THE STATUTE 8 & 9 VICT. C. 109. 161 
 
 Australian Jockey Club decided against the plaintiff, 
 who thereupon brought his action against the stakeholder 
 to recover the 1,000/. The jury returned a special ver- 
 dict, awarding the plaintiff 500/. ; subsequently a rule 
 absolute for a new trial was obtained, and the plaintiff 
 appealed. On his behalf, in the Privy Council, it was 
 sought to uphold the verdict of the jury. But it was 
 held that the plaintiff was bound by the decision of the 
 stewards on the alleged disqualification, and, further, 
 that, as the race had been duly run, he could not recover 
 his stakes back again. The judgment then contains the 
 following dictum : " And he (the plaintiff) could not 
 be entitled to recover the whole of the stakes without a 
 decision in his favour as to the age of Traveller (the 
 winning horse), which he has failed to obtain." This 
 dictum, it must be admitted, approximates to a decision 
 that if he had succeeded he would have been entitled to 
 recover the whole. So far as it goes, it supports Batty 
 v. Marriott (u). 
 
 However, the later case of Diggle v. Higgs () is the Diygle v. 
 authority which overrules Batty v. Marriott (u}. The 
 plaintiff Diggle and one Simmonite agreed to a walking- 
 match, and each deposited the sum of 200/. with the 
 defendant, as stakeholder. The walking-match took 
 place, and the referee decided in favour of Simmonite. 
 Before the defendant paid over the stakes to the winner, 
 the plaintiff demanded a return of the sum of 200/. 
 deposited by him with the defendant. Subsequently 
 the defendant, pursuant to the referee's decision, paid 
 the whole 400/. to Simmonite. Judgment was entered 
 for the defendant, pursuant to Batty v. Marriott. On 
 
 (<) Diggle v. Higgs, 2 Ex. Div. 422 ; 46 L. T. Ex. 721 ; 37 L. T. 
 27 ; 25 W. E. 777 (C. A.), reversing, 25 W. E. 607. 
 () Batty \. Marriott, 5C.V.818; 17L.J.C.P. 215; 12 Jur.462. 
 G. M
 
 162 THE LAW OF GAMBLING. 
 
 appeal, it was contended for the plaintiff that, as he had 
 demanded the sum deposited by him with the stake- 
 holder before it was paid over, but after the event had 
 happened, he could recover it back ; and that the agree- 
 ment between the parties was a wager, whereunder one 
 bet the other that he would beat him in a walking- 
 match and therefore was not within the proviso ; and 
 that Batty v. Marriott had been disapproved in Batson v. 
 Newman (u). On behalf of the defendant, it was urged 
 that it was not a wager, but a subscription towards a 
 sum of money to be awarded to the winner of a lawful 
 game. Lord Chancellor Cairns, in his judgment, de- 
 cided that the transaction was a wager, and continued : 
 Now, upon that, what is the true construction of 
 sect. 18 of 8 & 9 Viet, c. 109 ? Is a contract of this kind 
 excepted by the proviso ? We start with this, that the 
 contract was clearly a wager, and was within the first 
 part of the section. That section says, all contracts and 
 agreements, whether by parol or in writing, by way of 
 gaming and wagering shall be null and void : and then 
 there is a proviso which follows upon an intervening 
 sentence, in these words : "And no suit shall be brought 
 or maintained in any Court of law or equity for recover- 
 ing any sum of money or valuable thing alleged to have 
 been won upon any wager, or which shall have been 
 deposited in the hands of any person to abide the event 
 on which any wager shall have been made." Then 
 comes the proviso on which this question mainly rests : 
 " Provided always, that this enactment shall not be 
 deemed to apply to any subscription or contribution or 
 agreement to subscribe or contribute for or towards any 
 plate, prize, or sum of money to be awarded to the 
 
 (u) Batson v. Newman, 1 C. P. D. 573 ; 25 W. E. 85.
 
 THE STATUTE 8 & 9 VICT. C. 109. 163 
 
 winner or winners of any lawful game, sport, pastime, 
 or exercise." It it clear that there may be scores of 
 forms of "subscriptions, or contributions" towards a 
 plate or prize without there being any wager, and I 
 cannot read this proviso, which has a natural and intel- 
 ligible meaning, in a different way, and one which 
 would have the effect of neutralising the enactment. 
 The legislature, I think, never intended to say that 
 there should be no action brought to recover a sum of 
 money which shall have been deposited in the hands of 
 any person to abide the event on which any wager shall 
 have been made, and yet, that if the wager is in the 
 form of a subscription or contribution, the winner may 
 recover it. I read the proviso thus Provided that so 
 long as there is a subscription, which is not a wager, the 
 second part of the section shall not apply to it. ... 
 I think the Court (in Hatty v. Marriott] overlooked the 
 first part of the section which applies to all contracts, 
 lawful or unlawful, by way of gaming and wagering. 
 .... I cannot follow that case. " I therefore think 
 that, although there was a deposit of money, the con- 
 tract in this case was a wager, and that all the conse- 
 quences which are imposed by sect. 18 on contracts by 
 way of wagering follow." Cockburn, 0. J., and Bram- 
 well, L. J., concurred. In the case of Trimble v. Hill (#), 
 in the Privy Council, the case of Diggle v. Higgs was 
 followed, and was held to have " decided the vexed 
 question of the construction of a not very intelligible 
 enactment." On the footing of this decision, it is sub- 
 mitted, that the proviso is superfluous and unnecessary. 
 
 (x) Trimble v. Hill, 5 App. Cas. 342 ; 49 L. J. P. 0. 49 ; 42 
 L. T. 103; 28 W. K. 479. 
 
 M2
 
 164 
 
 THE LAW OF GAMBLING. 
 
 Without it, the winner of a lawful game could have 
 recovered " added money ;" for, as between the winner 
 and the subscriber or contributor of the " added money" 
 there is a valid contract. Sect. 18, as thus construed, 
 must be taken to have afforded an example of the danger 
 of superfluous words in a statute. 
 Proviso The proviso is limited to contributions or subscrip- 
 
 liinitea to 
 
 lawful games, tions to lawful games, sports, pastimes, or exercises. In 
 order to determine whether a given transaction is lawful 
 within the meaning of this proviso, reference must be 
 made to the statutes which have modified the common 
 law. In the case of Jenks v. Turpin (y), Hawkins, J., 
 summarizes the unlawful games as " ace of hearts, 
 pharaoh, basset, hazard, passage, roulet, every game of 
 dice, except backgammon, and every game of cards 
 which is not a game of mere skill ; and, I incline to add, 
 any other game of mere chance." Of course, this enu- 
 meration includes lotteries. With regard to pastimes 
 which, on the ground of cruelty to animals, have been 
 rendered illegal, the reader is referred to Section D. of 
 Chapter III. Generally, the statement of Best, J., in 
 R. v. Rogier (z), is important " It is quite clear that any 
 practice that has a tendency to injure public morals is a 
 common law offence. No game is unlawful in itself ; 
 but every game may be rendered so by playing at it for 
 an excessive stake ; for it is the amount played for and 
 not the name or nature of the game which is the essence 
 of it, and which constitutes an offence in the eyes of 
 the law "(a). 
 
 (y] Jenks v. Turpin, 13 Q. B. D. at p. 524. 
 
 (z) B. v. Rogier, 2 D. & E. at p. 435. 
 
 (a) Cited with approval by Smith, J., in Jenks v. Turpin, but 
 see Chap. II., p. 38, for wagers for excessive amounts at common 
 law.
 
 ( 165 ) 
 
 CHAPTEE YIII. 
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 
 
 WHEN two persons enter into a contract which is null Bet-ween 
 and void, no legal obligation is thereby created as 
 between them ; the mutual promises to pay are un- 
 enforceable. But the loser, if he desires, may lawfully 
 pay, and such payment, being in the eyes of law for no 
 consideration, is a voluntary payment (a). In the case 
 of Hill v. Fox (b), the question was raised as to whether 
 the plaintiff had endeavoured to obtain a legal obliga- 
 tion by means of a colourable evasion of the statute. 
 The plaintiff had won a considerable sum of money 
 from the defendant by certain contracts by way of 
 wagering on horse races. The defendant was unable to 
 pay ; he applied to the plaintiff for a loan of 2,0001. 
 The defendant alleged that the plaintiff lent him the 
 money on condition that he (the defendant) should pay 
 the plaintiff thereout the moneys owing in respect of 
 the bets on horse races ; the plaintiff denied that there 
 was any such condition, although he admitted that he 
 expected to be paid out of such moneys, and, as a fact, 
 was so paid. The loan was secured by a mortgage of 
 certain policies of assurance and by a covenant to pay. 
 
 (a) Fitch v. Jones, 5 E. & B. 238 ; 24 L. J. Q. B. 293 ; 1 Jur. 
 N. 8. 854. 
 
 (b) Hill v. Fox, 4 H. & N. 359.
 
 166 THE LAW OF GAMBLING. 
 
 The plaintiff brought his action on the covenant. Erie, 
 C. J. (and he was affirmed on appeal), told the jury that 
 the defendant's allegation would invalidate the security, 
 but, in the absence of such stipulation or agreement, the 
 deed would be valid. If the defendant was correct, it 
 was a mortgage given for an illegal consideration (c) in 
 substance, whatever it may have been in form. 
 Payment by jf a principal in a wagering contract can lawfully 
 person. pay, it would follow that he can request a third person 
 
 to pay on his behalf, and thereby create, as between 
 himself and such third person, a binding obligation to 
 repay the moneys so paid at his request. Until the 
 Gaming Law Amendment Act, 1892, came into opera- 
 tion, such was the law (d}. In Rosewarne v. Billing (e), 
 Erie, C. J., said : " I am clearly of opinion that if a 
 man loses a wager, and gets another to pay the money 
 for him, an action lies for the recovery of the money so 
 paid." This doctrine, when applied to agents, as will 
 be seen hereafter, had far-reaching effects, and led to 
 the passage, after the decision of the well-known case of 
 Head v. Anderson (/), of the Act of 1892. 
 
 Payment by a As it was lawful for a principal to pay moneys so 
 
 presentative. lost, there arose the question whether or not, after the 
 
 death of a principal, his personal representative could 
 
 make such payments, and charge the same against the 
 
 (c) Chap. V.,PartLT. 
 
 (d) 20th May, 1892. See post, Chap. IX. 
 
 (e) Rosewarne v. Billing, 15 C. B. (N. S.) 316 ; 33 L. J. C. P. 
 55; 10 Jur. N. S. 496; 9 L. T. 441; 12 W. E. 104; see also 
 Jessop v. Lutwyche, 10 Exch. 614 ; 3 0. L. E. 359; 24 L. J. Ex. 
 65; Knight v. Cambers, 15 0. B. 562; 3 C. L. E. 665; 24 L. J. 
 C. P. 121 ; 1 Jur. N. S. 525. 
 
 (/) Read v. Anderson, 10 Q. B. D. 100 ; 13 Q. B. D. 779; 52 
 L. J. Q. B. 214; 48 L. T. 74; 31 W. E. 453; 47 J. P. 311.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 167 
 
 estate of the testator or intestate. In the case of 
 Manning v. Purcell (g}, the testator, whose adminis- 
 tratrix cum testamento annexo the plaintiff was, had kept 
 a betting office, and had been in the habit of taking and 
 giving the odds against horses entered for particular 
 races, and, on these occasions, had received deposits 
 from the persons making the bets, and had given them 
 tickets, which entitled them, in the event of their being 
 winners, to the return of such deposits, together with 
 payment to them of the amount payable in respect of 
 the bets. According to the custom adopted in betting 
 on horse races, the death of either party before the race 
 vacates the bet. At the time of the testator's death, 
 many persons held tickets given by him to secure de- 
 posits for bets that had been made by them upon the 
 terms above mentioned. Some of the bets so secured, 
 having been determined against the testator, were then 
 actually payable. These the administratrix had paid, 
 returning at the same time the corresponding deposits. 
 The residue of such bets were still pending at the tes- 
 tator's death, the events upon which they depended not 
 having then happened. The administratrix had re- 
 turned the deposits upon these. The Lord Justice 
 Knight Bruce said : " As to bets not decided in his 
 lifetime, we are of opinion that those payments ought 
 to be allowed as against the general estate ; but as to 
 payments in respect of bets decided in the testator's 
 lifetime, there appears to us neither justification, nor 
 what in the court can be considered as an excuse, for 
 making the payments, however proper, and in a sense 
 
 (g) Manning v. Purcell, 7 De G. M. & G. 55 ; 24 L. J. Ch. 
 622 ; before Vice-Chancellor Stuart, 2 S. & G. 284.
 
 168 TUE LAW OF GAMBLING. 
 
 laudable on the part of the lady, the feeling under 
 which they may have been made." Lord Justice 
 Turner said : " I am of opinion, as to payments of the 
 first class (i. e., bets decided before the death of the 
 testator), that, having regard to the provisions of the 
 statute, they could not have been recovered from the 
 testator in his lifetime, and that, therefore, the pay- 
 ments by the administratrix in respect of these can be 
 regarded only as voluntary payments, and not as valid 
 as against the estate. But, with regard to the payments 
 in respect of bets left undecided at the testator's death, 
 I think the case stands very differently. The deposits 
 upon them had been received, indeed, by the testator 
 upon an illegal contract ; but it was, I think, within the 
 powers of the administratrix to determine such illegal 
 contract, and I take it that, in making these payments, 
 she must be considered as having done so, and that 
 these payments must, therefore, be allowed against the 
 estate." This case, then, is an express decision that a 
 personal representative, in his representative capacity, 
 cannot make payments of moneys so lost on wagers. 
 The effect of an express direction and power so to pay 
 has not been decided ; it would appear to justify the 
 payment. 
 
 Securities for There is, as has been shown, nothing unlawful or 
 illegal in making a payment pursuant to a void 
 wager. But securities for such payments are fre- 
 quently, though not always, subject to statutory enact- 
 ment. In Chapter Y. there is an account of the 
 securities which are within the statutes of Charles and 
 Anne, and in the Part II. of the same chapter the effect 
 of the statute of 5 & 6 Will. IV. c. 41 is examined. 
 The statute 8 & 9 Yict. c. 109 leaves the operation of
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 169 
 
 that statute unaffected. Securities which are within 
 that statute are given for an illegal consideration, 
 though the contract in respect of and incident to 
 which the security has been given is merely void. 
 This anomaly does not arise where the security is not 
 comprised within the operation of 5 & 6 Will. IV. 
 c. 41. Thus, the case of Fitch v. Jones (g), which was 
 discussed in the last chapter with regard to another 
 point, is an authority to show that a bill of exchange 
 not comprised within 5 & 6 Will. IV. c. 41, though 
 given in respect of a wagering debt, is given for that 
 which in law is equivalent to no consideration. It was 
 held that a merely void consideration would not throw 
 on the indorsee the onus of proving that he was a bond 
 fide holder for value. 
 
 In the case of Strachan v. Universal Stock Exchange (A), Mortgage by 
 the plaintiff deposited certain shares with the defen- respect of 
 dants by way of " cover " as regards certain transac- ^ansactions. 
 
 tions which the plaintiff was about to carry on with Right of 
 
 7m -11 mortgagor, 
 
 the defendants. The j ury said that the transactions in 
 
 question were wagering contracts in spite of their form. 
 Hence, Cave, J., held that the plaintiff was entitled to 
 the relief which he sought, namely, the recovery of the 
 shares or their value. In the Court of Appeal that 
 judgment was upheld. Bigby, L. J., was inclined to 
 call the claim one of redemption. He said : " Here 
 is a man who claims to be a mortgagee. Directly the 
 transactions are held to be gaming transactions, it 
 follows as a matter of course that his claim in respect 
 
 (g) Fitch v. Jones, 5 E. & B. 238 ; 24 L. J. Q. B. 293 ; 1 Jur. 
 N. S. 854. 
 
 (h) Strachan v. Universal Stock Exchange, (1895) 2 Q. B. 329; 
 43 W. B. 611.
 
 170 THE LA.W OF GAMBLING. 
 
 of them fails ; and where from the nature of the trans- 
 action itself nothing can be due on the mortgage, the 
 mortgagee must deliver up the security." An order for 
 the delivery up of the security or payment of the value 
 could in such a case, where nothing is due, be made 
 either at law or in equity. 
 
 Payment by Where one person is legally indebted to another, that 
 indebtedness cannot be discharged by a wager, say, 
 tossing for " double or quits." If the creditor sued for 
 the double sum he could only do so by setting up the 
 wagering contract. If he, having lost the wager, 
 sued for the original amount, the defendant would 
 be compelled to set up the wagering contract which 
 the Court would not enforce. This point came before 
 the Courts in the case of Wilson v. Cole (i). The 
 defendant was under a binding contract to take a 
 lease of the plaintiff's house. The defendant offered 
 the plaintiff 50 /. to be discharged from his contract, 
 but the plaintiff refused. Subsequently the plaintiff 
 agreed to rescind the contract for a payment of 501. 
 by the defendant, together with a further payment of 
 251. by the defendant if the plaintiff should win on the 
 toss of a coin. The defendant won the toss. The 
 plaintiff sued for the 50/. The Court held that the 
 agreement was severable, and consisted of two parts : 
 first, that in any event the agreement should be re- 
 scinded for 50/. ; secondly, the contingency as to the 
 further payment of 251., which was a wagering element. 
 The plaintiff was held entitled to recover the 501.', but 
 seem if the whole contract had been a wager. 
 
 (i) Wilson v. Cole, 36 L. T. N. S. 703 ; cf . Eourke v. Short, 5 
 E. & B. 904 ; 25 L. J. Q. B. 196 ; 2 Jur. N. S. 352 ; Crofton v. 
 Colgan, 10 Ir. 0. L. E. 133 ; see Chap. I.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 171 
 
 With wagering contracts which are null and void, Power to 
 , , , -I,. ,. , , . , rescind where 
 
 and whereunder no obligation is created inter panes, no age nt 
 
 it may seem immaterial whether the contract be pur- em P lo y ed - 
 ported to be rescinded or not. But the importance of payments or 
 rescission arises in connection with contracts collateral de P 81t8 - 
 to the wager ; and in two instances : first, where a 
 deposit is made by the one principal with the other 
 by the client with the bookmaker ; secondly, where a 
 third person is employed as agent. In this paragraph 
 the first instance will be dealt with. The question, 
 then, is whether the one principal who has made a 
 deposit with the other to abide a contingency, can 
 before the determination of the wager demand back 
 his deposit, or if the wager be determined in his favour 
 sue for the return of his deposit. There are two prin- 
 ciples of law : (a) a voluntary payment cannot be re- 
 covered by the payer ; (b) a voluntary bailment can be 
 revoked. The question, so far as there is a question, 
 is, which principle applies to the facts. On the one If deposits, 
 hand, if the transaction were an out-and-out payment and rights 
 of money in consideration of a promise in a certain sta 
 uncertain event to repay a larger sum, the considera- 
 tion for such payment would in law be no consideration, 
 and the payment would be a voluntary one. On the 
 other hand, if the intention of the parties was merely 
 to secure a future payment, then the transfer of the 
 money or other valuable chattel would be pursuant, as 
 is suggested by term "deposit," to some contract of 
 bailment, either a depositum, with an obligation on the 
 depositary to hold the specific coins or chattel, or a 
 commodatum, whereunder he might use the specific 
 coins. The obligation of the bailee would be to retain 
 the specific coins or chattels until the happening of a
 
 THE LAW OF GAMBLING. 
 
 definite uncertain event, and then, according as that 
 event happened in the one way or the other, either to 
 return to the bailor, or to hold for his (the bailee's) 
 own benefit absolutely. Where there is a power of 
 user, and no duty on the bailee with regard to the 
 specific coins, the obligation in the event of his losing 
 the wager would be to repay to the bailor an equal 
 sum of money. Until that event happens which ends 
 the bailment by converting the bailee into the owner, 
 or which releases him from his obligation to repay, the 
 bailment can be revoked by the bailor, and on the foot- 
 ing of such revocation the repayment of the deposit 
 obtained. Thus, not only could the depositor demand 
 the return prior to the determination of the wager, 
 but after the determination in his favour he could sue 
 for the same repayment (i). 
 
 Manning^. The point was involved in the above-mentioned 
 
 Purcell. 
 
 case of Manning v. Purcell (/) : the case was a deci- 
 sion on the question of whether a personal represen- 
 tative could charge against the estate certain payments 
 made by her; and is subject to the observation that, 
 though a personal representative be allowed payments 
 actually made, it does not follow that the creditor 
 could have compelled payment, for instance, debts 
 barred by the Statute of Limitations. The personal 
 representative made three payments : first, she paid 
 the amounts won on bets lost by the testator in 
 his lifetime; secondly, she repaid the deposits made 
 in respect of the bets so lost ; thirdly, she re'paid the 
 deposits on bets which had not been decided in the tes- 
 
 (i] See post, pp. 190 et seq. 
 
 (/) Manning v. Purcell, 7 De G. M. & G. 55 ; 24 L. J. Oh. 
 522 ; 2 S. & G. 284.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 173 
 
 tator's lifetime. She was disallowed the first; not 
 allowed the second ; and allowed the third. On the 
 principles of the valid though gratuitous bailment, 
 the third was a proper payment ; but the difficulty arises 
 in the disallowance of the second. The event which 
 alone entitled the testator to hold such deposits abso- 
 lutely for his own benefit, or which released him from an 
 obligation to repay, had not and could not happen ; the 
 administratrix in making such payment was discharging, 
 it is submitted, a legal obligation of the testator's estate. 
 The Court spoke of the wager as illegal; but neither 
 before the Vice-Chancellor nor in the Court above, 
 was any suggestion made that the contract was not valid 
 otherwise than under sect. 18 of 8 & 9 Viet. c. 109, 
 though the facts are suggestive of a business illegal 
 under the Betting House Act. If the Court had 
 adopted the construction of that section, which was 
 accepted in the case of Beyer v. Adams (&), since over- 
 ruled, the probability is that the third payments would 
 have been disallowed. The decision as it stands admits 
 the existence of the bailment, but erroneously denies an 
 obligation arising therefrom (/). 
 
 In the later case of Reggio v. Stevens (m) , the plaintiff Reggio v. 
 had purported to employ the defendants, who were 
 outside brokers, to buy and sell stocks and shares for him. 
 The plaintiff sued for a balance of his account, and for 
 the sum of 40 /. deposited by him by way of cover. The 
 defendants pleaded that the transactions were mere 
 wagers. The jury were not satisfied as to the plaintiffs 
 intention, and found that the transactions were not dif- 
 
 (k) Beyer v. Adams, 26 L. J. Ch. 841 ; 3 Jur. N. S. 709 ; 5 
 W. E. 795. 
 (0 Seep. 186. 
 (m) Beggio v. Stevens, 4 T. L. E. 326.
 
 174 THE LAW OF GAMBLING. 
 
 ference transactions. The defendants applied to set 
 aside the verdict. The Court were of opinion that the 
 transactions were mere wagers, and that the balance of 
 the account in the plaintiff's favour represented winnings, 
 which he could not recover ; but the plaintiff was held 
 entitled to recover his deposit. In the course of the 
 argument Manning v. Purcell was cited, and Baron 
 Huddleston remarked, " That case shows that before the 
 event the money can be recovered." In the judgment 
 of Baron Huddleston it was stated that, as to the 40/. 
 deposited as " cover," " that is, a certain sum deposited 
 to cover possible losses and to protect the agents in that 
 event, though it had been deposited for the purpose of 
 entering into illegal transactions, the party paying it 
 might revoke his authority and demand its return." 
 Manisty, J., said that " the plaintiff was entitled to 
 recover back the 40/., because he was entitled to say he 
 would gamble no more." It is curious that in this case, 
 as in Manning v. Purcell, the transactions should have 
 been called illegal. The decision is based on the fact 
 that, in the view of the learned judges, the defendants 
 were principals in wagering transactions, and as such, 
 principals could not be sued for the winnings, but in 
 the other of their dual capacities, namely, as bailees, 
 they were liable for the deposits. 
 
 In Strachan v. The Universal Stock Exchange (w), one 
 principal to a wager deposited certain shares with the 
 other principal. The Court of Appeal held that the 
 depositor could nullify the deposit at any time before 
 the realization of the security. Smith, L. J., stated 
 that the defendants were none the less stakeholders 
 because they were also co-wagerers. Obviously the de- 
 
 () See ante, p. 169.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 175 
 
 fendants, if money instead of shares had been the sub- 
 ject of the deposit, would equally have held such money 
 qua stakeholders. 
 
 Hence it follows that such deposits are not voluntary 
 payments, but are made under a gratuitous, and there- 
 fore revocable, bailment ; and the authorities, cited 
 post (0), as to the right of rescission, where a third 
 person intervenes as stakeholder, are in point. The 
 Gaming Act, 1892, will hereafter be seen not to have 
 annulled this right of recovery. 
 
 When it is desired to rely on the defence that the Pleading, 
 contract is void under the statute 8 & 9 Yict. c. 109, 
 the facts which show it to be must be pleaded, as in the 
 defence of illegality (p). 
 
 Where the agency is a lawful one, the contract of Agency 
 employment involves the usual rights, on the one hand, 
 of the principal against the agent to recover damages 
 for breach of the contract (</) ; on the other hand, of the 
 agent as against the principal to recover his commission, 
 to be reimbursed his advances and expenses, and to be 
 indemnified against damages flowing naturally from the 
 agency (r). Such contract of agency may be revoked 
 by the act of the parties or by operation of law. In 
 the former case, where the agent has part performed his 
 contract, the question arises as to whether the principal 
 can revoke the authority, either in whole or as to the 
 part which remains unexecuted ; when the authority is 
 not severable, and damage would arise to the agent on 
 account of the execution of the authority pro tanto, 
 there the principal will not be allowed to revoke the 
 
 (o) See post, pp. 190 et seq. 
 
 (p} Ante, p. 115. 
 
 (7) Story on Agency, 7th edit. sect. 222. 
 
 (r) Story on Agency, 7th edit, sects. 335, 341.
 
 176 THE LAW OF GAMBLING. 
 
 unexecuted part, or at least, not without indemnifying 
 the agent. Again, when the power is coupled with an 
 interest, then, unless there is an express stipulation that 
 the contract shall be revocable, it is, from its own 
 nature, in contemplation of law, irrevocable, whether 
 it is expressed to be so on the face of the instrument 
 creating the authority or not. In the latter case, revo- 
 cation by operation of law depends on the principle that 
 the derivative authority expires with the original autho- 
 rity from which it proceeds : thus death or bankruptcy of 
 the principal would terminate the agent's authority (s) . 
 Application The application of the foregoing principles to the 
 principf es Dg positions of principal and agent, with regard to contracts 
 null and void under 8 & 9 Yict. c. 109, will now be 
 considered. It will be convenient to discuss the law 
 as it was prior to the Gaming Act, 1892, which operates 
 on such transactions as were entered into subsequently 
 to the 20th May, 1892, with a view also to demonstrate 
 the changes introduced by the last-mentioned Act. 
 The principal The right of the principal to recover against his 
 against his agent damages for breach of contract by the defendant, 
 breach of i n n0 ^ making wagers on his behalf, was before the 
 contract to Courts in the case of Cohen v. Kittellif). This claim 
 
 make a 
 
 wager. for damages was advanced as an alternative to a claim 
 
 for money had and received by the defendant to the use 
 of the plaintiff. The verdict established that the defen- 
 dant had not made the bets. Mr. Baron Huddleston 
 therefore held that the decisions in cases where the 
 agents had made the bets were not in point. He said : 
 " The contract of agency for the breach of which the 
 plaintiff sues the defendant is one by which the plaintiff 
 
 (s) Story on Agency, 7th edit, sects. 466 488. 
 (*) Cohen v. Kittell, 22 Q. B. D. 680 ; 58 L. J. Q. B. 241 ; 60 
 L. T. N. S. 932 ; 37 W. E. 400 ; 53 J. P. 469.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 177 
 
 employed the defendant to enter into contracts which, if 
 made, would have been null and void, and the perform- 
 ance of which could not have been enforced by any legal 
 proceeding taken by the defendant for the benefit of the 
 plaintiff. The breach of such contract can give no right 
 of action to the principal. I see no difference between 
 the case and the employment of an agent to do an illegal 
 act (u). The section of Story on Agency (x) which has 
 been cited shows that the right of the plaintiff to have 
 recovered in respect of the contract to have been made 
 by the agent on his behalf is an ' essential ingredient ' 
 in the case against the agent for negligence in not con- 
 tracting. In this case this ' essential ingredient ' is 
 wanting, and Webster v. De Tastet (y) shows that, this 
 being so, the consideration urged on behalf of the plain- 
 tiff, that the losers of the bets to the defendant would 
 probably have paid them as debts of honour, is wholly 
 immaterial." Manisty, J., after referring to Read v. 
 Anderson, said : " We are now invited to go a step 
 further and to hold that a principal, who employs an 
 agent to make bets on his account, can maintain an 
 action for negligence against the agent should the latter 
 refuse to bet for him. The custom of TattersalPs is 
 again invoked, this time to make the agent responsible. 
 It is clear, however, that the action cannot be main- 
 tained. ... A principal can suffer no real loss through 
 the refusal of his agent to make bets on his account." 
 The probability that the defendant was a member of 
 some club, which constituted itself a conventional forum 
 for the enforcement of such payments, was as immate- 
 rial as the probability that the defendant would have 
 
 (u) Ante, pp. 123 et seq. 
 (x) Sect. 222. 
 
 (y) Webster v. De Tastet, 7 T. E. 157. 
 O. N
 
 178 THE LAW OF GAMBLING. 
 
 paid without such pressure. It is impossible to separate 
 the question whether an action would lie from the 
 damage sustained ; it is a case in which the law cannot 
 imply nominal damages. Every injuria implies damages ; 
 here damages cannot be implied ; so the neglect of the 
 act of making the wager cannot be an injuria. The de- 
 fendant's contract was to do that which in law is equiva- 
 lent to nothing ; he did nothing. 
 
 Agent's rights It will be remembered that the agent cannot recover 
 principal in any disbursements made for the purpose of effecting an 
 disbursements illegal transaction (z). The question now is, whether an 
 and commis- a g en t f or making a void, as contradistinguished from 
 an illegal, contract, can recover his disbursements. In 
 1854 this question was raised in the case of Jessop v. 
 Lutwyche (a) . The declaration was for money paid and 
 on accounts stated; the plea was that the causes of 
 action accrued after 8 & 9 Yict. c. 109, under and by 
 virtue of certain contracts made between the plaintiff 
 and defendant by way of gaming upon the market price 
 of shares. Baron Parke held that the plea was consis- 
 tent with a state of facts which would enable the plain- 
 tiff to recover, viz., that a third person had won the 
 money, and that the plaintiff had requested the defen- 
 dant to pay the money over to him. Similarly, in 1855, 
 in Knight v. Cambers (b), the plea to the same effect was, 
 for the same reason, successfully demurred to. In the 
 case of JRosewarne v. Silling (c), the two earlier cases 
 
 (2) Clayton v. Dilley, 4 Taunt. 165; ante, Chap. VI. p. 124. 
 
 (a) Jessop v. Lutwyche, 10 Exch. 614; 3 0. L. E. 359; 24 
 L. J. Ex. 65. 
 
 (6) Knight v. Cambers, 15 C. B. 562 ; 3 0. L. E. 565 ; 24 L. J. 
 0. P. 121 ; 1 Jur. N. S. 525. 
 
 (c) Bosewarne v. Billing, 15 0. B. N. S. 316; 33 L. J. 0. P. 
 55 ; 10 Jur. N. S. 496 ; 9 L. T. 441 ; 12 W. E. 104.
 
 OBLIGATIONS AKISING OUT OF VOID TKANSACTIONS. 179 
 
 were followed, and Erie, 0. J., in the course of his 
 judgment, said: "I am clearly of opinion that if a 
 man loses a wager and gets another to pay the money 
 for him, an action lies for the recovery of the money so 
 paid (d). . . . I should incline to think that if one 
 requests another to make a wagering contract on his 
 account, and pay the loss if loss happens, that would be 
 a continuing request to pay until revoked. If the party 
 were a broker, who, by usage of the share market, was 
 bound in all events to pay, it might be a question 
 whether the principal could be allowed to rescind." 
 Williams, J. : " It is quite consistent with the plea that 
 the plaintiff, having made the contract in his own name, 
 and being by force of the statute able to resist payment 
 of the money, might have been minded to resist but for 
 the defendant's request to him to pay." 
 
 So far these cases are authorities to show that the 
 agent having made the wager, and the wager having 
 been lost, an express direction from the principal to the 
 agent to pay the amount lost founds an obligation 
 between the principal and agent. But the case of 
 Ex parte Godefroi, In re Hart (e), goes further. In 
 that case a stockbroker sought to have the defendant 
 made a bankrupt. The debt arose from transactions 
 which the respondent had authorized him to effect on 
 the Stock Exchange, and the money due on such trans- 
 actions from the respondent had been paid by the peti- 
 tioner. The defence of gaming transactions was set 
 up. The Chief Judge held that the petitioner was 
 merely agent, and " since the respondent must be taken 
 to have known that by the rules of the Stock Exchange 
 
 (d) See Akinbrook v. Hall, 2 Wils. 309 ; ante, p. 55. 
 
 (e) Ex parte Oode/roi, In re Hart, W. N. (1870) 95. 
 
 N2
 
 180 THE LAW OF GAMBLING. 
 
 the petitioner was bound to pay members of the Stock 
 Exchange any sums of money which might be due 
 from the respondent to them in regard to the trans- 
 actions, a request to pay such sums must be im- 
 plied." In the next case of Ex parte Pyke, In re 
 Lister (/), there was an express request, after the 
 loss of the wager, to the agent to pay on behalf of 
 the principal. The case of Lynch v. Godtcin (<?), which 
 is briefly reported, was an action to recover 40 /. paid 
 by the plaintiff for the defendant on a betting trans- 
 action. In 1878 the plaintiff was instructed by the 
 defendant to bet 40 /. on a horse called Yril for the 
 Ascot Stakes. The plaintiff did so. In the result the 
 horse lost, and the plaintiff paid the money. The 
 defendant declined to repay. Lord Coleridge, 0. J., 
 held that the plaintiff could recover, for whilst the 
 wager was void, transactions arising out of it were not. 
 In the Court of Appeal this judgment was affirmed. 
 Jessel, M. R., said : " The employment of an agent 
 to bet was not in itself illegal ; and a bet was void, but 
 not illegal. If you employ an agent to make a bet for 
 you, you know you must pay, or be subject to very 
 unpleasant consequences. If you do not withdraw 
 your request, it must continue, and if he bet at your 
 request, he paid at your request ; you were liable for 
 the money so paid." Lindley, L. J., is reported to 
 have enunciated the principle : "A request to pay the 
 bet if lost was implied in the request to bet." Bowen, 
 L. J., concurred. 
 
 (/) Ex parte Pyke, In re Lister, 8 Ch. Div. 754; 47 L. J. Bk. 
 100; 38 L. T. 923; 26 W. E. 806; see ante, p. 55, where the 
 case is cited on the question whether the security for the advance 
 was within the statute of Anne. 
 
 (</) Lynch v. Godwin, 26 Sol. Jour. 509.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 181 
 
 The case of Read v. Anderson (li) was tried before Read v. 
 Hawkins, J., without a jury. It arose on the follow- 
 ing facts : The plaintiff was a turf commission agent, 
 and a member of TattersalFs. According to well- 
 established usage, known to the defendant, a turf 
 commission agent instructed by an employer to back 
 a horse backs it in his own name, and becomes himself 
 alone responsible to the person with whom the bet is 
 made ; and, on the settling day, he receives or pays, as 
 the case may be, rendering his own account to his em- 
 ployer, paying to or receiving from him the balance of 
 moneys won or lost. During the Ascot meeting of 
 1881, the plaintiff at Ascot received a telegram from 
 the defendant instructing him to back certain horses 
 for him. As to the horses in the first race, the tele- 
 gram came too late to be acted on. As to the second 
 race, the plaintiff carried out the defendant's instruc- 
 tions by backing the horses for the amounts named in 
 his (the plaintiff's) name. The result was that 1751. 
 was lost. The plaintiff did not telegraph to the defen- 
 dant that he was " on " before the race ; but after the 
 race was over he telegraphed the result. The same 
 evening the defendant repudiated the bets, " as I can- 
 not stand messages being sent away after the race 
 is over to say I am 'on.'" The plaintiff, in reply, 
 sent to the defendant particulars of the bets, and an 
 account. On the settling day the plaintiff paid the 
 bets in question to the winners of them. Had he not Penalty on a 
 done so he would have been a " defaulter " within the 
 meaning of one of the rules of Tattersall's subscription 
 room, and upon complaint made to the committee of 
 
 (A) Read v. Anderson, 10 Q. B. D. 100; 13 Q. B. D. 779; 25 
 L. J. Q. B. 214 ; 48 L. T. 74 ; 31 W. E. 453 ; 47 J. P. 311.
 
 182 THE LAW OF GAMBLING. 
 
 tlie room he would have been liable to exclusion from 
 the room, and under the rules of the Jockey Club he 
 would have been liable to disqualification as to enter- 
 ing and running horses. The report does not say that 
 the defendant was aware of these specific conse- 
 quences. 
 
 The plaintiff brought this action to recover 175/., 
 the amount of the three bets so made by the plaintiff in 
 his own name at the request of and for the defendant, 
 and paid by the plaintiff to the winners thereof. 
 
 On behalf of the defendant, the first and unimportant 
 contention was advanced, that because a telegram was 
 not handed in before the race to say the defendant was 
 "on," he was entitled to repudiate the bets. Such 
 contention was based on an express condition to that 
 effect, or one implied by universal custom. Hawkins, J., 
 decided that such a condition was neither expressed 
 nor implied, and found, as a fact, that the bets were 
 bond fide made on behalf of the defendant. This 
 alleged condition was not raised in the Court of 
 Appeal. 
 
 On behalf of the defendant, the second and important 
 contention was, that he had never authorized the plain- 
 tiff to pay the bets, and, even if he had, that authority 
 Judgment of was revoked before the money was actually paid. In 
 the course of his judgment, the learned judge points 
 out the wagers were void and not illegal, and that the 
 defendant might lawfully authorize the plaintiff or any- 
 one to pay the amount of the losses; and if by his 
 request or authority another person paid his lost bets, 
 the amount so paid could be recovered from him as so 
 much money paid to his use. " The request or authority 
 to make such payments may be either express, or it may 
 be implied from usage or from the nature of the deal-
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 183 
 
 ings between the parties themselves "(0- -H- 
 as a fact, that at the time the defendant gave the autho- 
 rity to make the bets he gave also an implied authority 
 to pay them if they should be lost. On the basis of 
 that finding, the learned judge found, as a fact, that 
 the authority had not been revoked, and further con- 
 cluded that such de facto revocation (if there had been 
 any) would have been inoperative at law. He calls 
 attention to the dicta of Erie, C. J., in Rosewarne v. 
 Billing, and proceeds to state his reasons for so holding, 
 which briefly were, that the plaintiff's authority was 
 coupled with an interest, and, therefore, was irrevoc- 
 able : " It was the plaintiff's security against any loss by 
 reason of the obligation he had personally incurred on 
 the faith of the authority to pay the bets if lost ; the 
 consideration for that authority was the taking upon 
 himself that responsibility at the defendant's request." 
 The point at which the authority becomes irrevocable 
 is the act on the agent's part of making the bet. The 
 learned judge states the principle in other words, as 
 follows : "If a principal employs an agent to do a 
 legal act, the doing of which may in the ordinary course 
 of things put the agent under an absolute or contingent 
 obligation to pay money to another, and at the same 
 time gives him an authority if the obligation is incurred 
 to discharge it at the principal's request, the moment 
 the agent, on the faith of that authority, does the act 
 and so incurs the liability, the authority ceases to be 
 revocable." Another ground is suggested, namely, an 
 implied contract to indemnify ; and Hawkins, J., says : 
 
 (r) The authorities cited are Bulb v. Yelverton, L. E. 9 Eq. 
 471 ; 39 L. J. Ch. 428; 22 L. T. 258; 18 W. E. 512 ; Oldham v. 
 Eamsden, 44 L. J. C. P. 309 ; 32 L. T. 825 ; Mosewarne v. Billing, 
 15 C. B. N. S. 316 ; 33 L. J. C. P. 55 ; 10 Jur. N. S. 496 ; 9 
 L. T. 441 ; 12 W. E. 104 ; Lynch v. Godwin, 26 Sol. Jour. 009.
 
 184 THE LAW OF GAMBLING. 
 
 " I think it signifies nothing that such obligation (against 
 which the indemnity is to operate) is not enforceable 
 in a court of justice if the non-fulfilment of it would 
 entail serious inconvenience or loss upon the agent." 
 
 It will be seen that the bases of this decision are in- 
 applicable where the agent makes the contract in the 
 name of the principal. The irrevocability of the agent's 
 implied authority to pay is thus based on the fact that 
 he is taken to have incurred an absolute or contingent 
 obligation to pay. But in strictness an obligation 
 means a duty, a vinculum juris : that, however, is exactly 
 what the agent had not incurred ; the only quasi duty 
 lie had incurred is one known not to the law, but 
 only to a conventional form itself unknown to the law. 
 From the standpoint of indemnity, he is allowed pro- 
 tection against damages which could not be recovered 
 at law. 
 
 Lord Esher's In the Court of Appeal (&), Lord Esher, M. B,., said : 
 judgment. " The real question is whether the defendant, as princi- 
 pal, could revoke the authority given to the plaintiff as 
 agent. The evidence proves that when a member of 
 Tattersall's makes bets and does not pay them if lost, 
 he is liable to be turned out of the room ; and if he is 
 turned out, he cannot carry on his business as a turf 
 commission agent. The question is whether the law 
 implies an undertaking by the defendant that he will 
 not revoke the plaintiff's authority to pay bets which 
 have been lost. If a principal employs an agent to 
 perform an act, and if, upon revocation of the authority, 
 the agent will be by law exposed to loss or suffering, 
 the authority cannot be revoked. But in the present 
 case no claim could be lawfully enforced against the 
 agent. It is true that the betting contract was made 
 
 (yfc) Head v. Anderson, 10 Q. B. D. 100; 13 Q. B. D. 779; 52 
 L. J. Q. B. 214 ; 48 L. T. 74; 31 W. B. 453; 47 J. P. 311,
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 185 
 
 by the plaintiff in his own name on behalf of his prin- 
 cipal ; nevertheless it could not be enforced against him. 
 If the other party to the bet had lost it, and had declined 
 to pay it, he could not have been compelled to do so. 
 But it has been contended that, although this view is 
 true, the law puts it into the plaintiff's power to enforce 
 payment by the defendant of the amount of the bet, 
 because, unless it is paid, the plaintiff will suffer a loss 
 in his business ; but the plaintiff's business, although it 
 may not be illegal, is directly objected to by the law, 
 and the contracts made by him in his business cannot 
 be enforced ; it is a business of which the law ought not 
 to take notice, and, therefore, the inconvenience and the 
 loss which the plaintiff may suffer in his objectionable 
 business form no ground for an action for revoking an 
 authority which the principal ought not to have given. 
 The cases in which an authority cannot be revoked ought 
 to be confined to those cases in which the agent will upon 
 revocation suffer what the law deems to be an injury." 
 
 Bo wen, L. J., whilst he felt the force of the point Bowen and 
 
 Fr 
 
 that the obligation to pay a lost bet, relied upon by the 
 plaintiff, is not recognised by law, held, as an inference 
 of fact, that the contract of employment was such that 
 thereunder, and as a part thereof, there was an obliga- 
 tion on the principal to recoup his agent, and not to 
 revoke his authority to pay, but to indemnify the agent 
 against all payments made in the regular course of 
 business. Fry, L. J., agreed with Bowen, L. J. 
 
 It follows from this decision that as such contract of 
 employment is valid, the agent can recover his agreed 
 commission. In Bridger v. Savage (I), such amounts 
 were allowed. 
 
 (1) Bridger v. Savage, 15 Q. B. D. 363 ; 54 L. J. Q. B. 464 ; 
 53 L. T. 129 ; 33 W. E. 891 ; 49 J. P. 725.
 
 186 THE LAW OF GAMBLING. 
 
 frl^whom ^ e w i nner f a wager may recover his winnings 
 winnings may when the loser has paid them to the winner's agent. 
 It will be rememhered that such a right exists even 
 when the transaction, as between the winner and the 
 loser, out of which the winnings have arisen, is 
 illegal (m). In the case of Beyer v. Adams (n], it was 
 held that the winner could not recover from his agent. 
 The cases of Tenant v. Elliott and Farmer v. Russell, were 
 cited in argument : but Stuart, V.-C., considered that 
 section' 18 destroyed the right of action. Such an 
 action, he held, was clearly within the prohibition of the 
 statute, and such prohibition could not be confined to 
 actions against the loser of the wager. The question 
 came before the Court of Appeal in the case of Bridge? 
 v. Savage (o), with the result that Beyer v. Adams was 
 overruled. It was an action by the plaintiff to recover 
 the sum of 131 /. 17s. 6d. due to him on the balance of 
 accounts for money had and received to the use of the 
 plaintiff. The case for the plaintiff was that it was 
 arranged between him and the defendant that the latter, 
 for a commission of 51. per cent, on winnings, was to 
 make bets for the plaintiff by laying money for him on 
 various horses at starting prices, and that he, the de- 
 fendant, had accordingly done so, and had received 
 2121. 10s. from the losers ; and that on the balance of 
 account there was due the sum claimed in the action, after 
 deducting the agent's commission. The case for the de- 
 fendant was that there was no such arrangement as the 
 plaintiff alleged, but that the bets on the horses were made 
 
 (m) See Chap. VI., pp. 125, 126. 
 
 (n) Beyer v. Adams, 26 L. J. Gh. 841 ; 3 Jur. N. S. 709 ; 5 
 W. E. 795. 
 
 (n) Bridger v. Savage, 15 Q. B. D. 363 ; 54 L. J. Q. B. 464 ; 
 53 L. T. 129 ; 33 W.. E. 891 ; 49 J. P. 725.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 
 
 by the plaintiff with the defendant personally, and that as 
 such they were not recoverable at law. The action was 
 tried before Lord Coleridge, 0. J., without a jury, when 
 his lordship disbelieved the defendant, and gave judg- 
 ment for the plaintiff for the amount claimed. The 
 defendant appealed : first, as against the finding of the 
 facts ; secondly, against the legal conclusion to be drawn 
 from the facts as found. Brett, M. R., said it was im- 
 possible to dissent from the Lord Chief Justice on the 
 question of fact (p), and in the course of his judgment 
 puts the question thus : " the defendant has received 
 money which he contracted with the plaintiff to hand 
 over to him when he had received it. That is a per- 
 fectly legal contract ; but for the defendant it has been 
 contended that the statute 8 & 9 Yict. c. 109, s. 18, 
 makes that contract illegal. The answer is, that it has 
 been held by the Courts on several occasions that the 
 statute applies only to the original contract made be- 
 tween the persons betting, and not such a contract as 
 was made here between the plaintiff and defendant." 
 The learned judge then cites a passage from the judg- 
 ment of Eyre, C. J., in Tenant v. Elliott, which points 
 out that the defendant is not in the position of a stake- 
 holder. The decision of the case in favour of the 
 plaintiff would follow from the ratio decidendi of Read 
 v. Anderson, that such contract of employment was 
 valid. Bowen, L. J., said : " If the person who has 
 betted pays his bet, he does nothing wrong ; he only 
 waives a benefit which the statute has given to him, and 
 
 (p) In Read v. Anderson, the Master of the Eolls said the 
 Court of Appeal were not bound by the findings of facts of 
 Hawkins, J., trying the case without a jury : Read v. Anderson, 
 10 Q. B. D. 100; 13 Q. B. D. 779; 52 L. J. Q. B. 214; 48 
 L. T. 74; 31 W. E. 453 ; 47 J. P. 311.
 
 188 THE LAW OF GAMBLING. 
 
 confers a good title to the money on the person to whom 
 he pays it. Therefore, when the bet is paid, the trans- 
 action is completed, and when it is paid to an agent, it 
 cannot be contended that that is not a good payment 
 for his principal. If not, how monstrous it would be 
 that the agent who has received money which belongs 
 to his principal, and which he has received for his prin- 
 cipal, and only on that account, should be allowed to 
 say that the payment was bad and void." The cases of 
 Johnson v. Lansley and Beeston v. Beeston, which will be 
 considered hereafter (17) as illustrating the rights of part- 
 ners in void contracts, are to the same effect. The 
 decision was influenced by the case of Sharp v. Taylor, 
 which was criticised by Jessel, M. E., as shown in 
 Chapter VI. 
 
 The facts of the case of Bridger v. Savage, stated 
 above, exemplify the nature of the burden of proof 
 which lies on the plaintiff: first, the contract of 
 agency ; secondly, the receipt of the money in respect 
 of bets entered into pursuant to such contract. The 
 second onus will commonly be discharged by proving 
 the agent's accounts as rendered by him to the prin- 
 cipal (r) . The agent is in general estopped from deny- 
 ing the accuracy of accounts rendered by him to his 
 principal, except in the case of an error arising by mis- 
 take (s). 
 
 (q) Page 195. 
 
 (r] Bittleston v. Cooper, 14 M. & W. 399 ; Standish v. Boss, 
 3 Ex. 527 ; 19 L. J. Ex. 185 ; Lucas v. Jones, 5 Q. B. 949 ; D. & 
 M. 774 ; 13 L. J. Q. B. 208 ; 8 Jur. 422 ; Oingell v. Purkins, 4 
 Ex. 720; 19 L. J. Ex. 129. 
 
 (s} Skyring v. Greenwood, 4B. & C. 281 ; 6D. & E. 401 ; 1 0. & 
 P. 517 ; Shaw v. Picton, 4 B. & C. 715 ; 7 D. & E. 201 ; Cave v. 
 Mills, 31 L. J. Ex. 265 ; 6 L. T. N. S. 650 ; 8 Jur. N. S. 363 ; 
 10 W. E. 471.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 
 
 In the case of Moore v. Peachey (t), the same defence 
 was raised as in the above case of Bridger v. Savage, 
 namely, that the bets had been made between the plain- 
 tiff and defendant as principals. The plaintiff proved 
 the employment, and put in accounts received by him 
 from the defendant, wherein he was given credit for 
 amounts purporting to have been received by the de- 
 fendant, who charged him commission. He also pro- 
 duced lettCTsT^n^s^m 16 of which the defendant spoke of 
 
 not being able " to get on " certain horses, and of per- 
 sons with whom he had made bets refusing to pay him. 
 The defendant struggled to rebut this evidence by 
 swearing that he had " never placed," and had never 
 received the money, and that the expressions in his 
 letters had reference to his inability to make " hedging" 
 bets, or of his loss in respect of hedging bets, and that 
 the charges for commission were really charges for ex- 
 penses. The evidence of the clerk and other bookmakers 
 disclosed facts which showed that " bookmakers" and 
 "commission agents" were practically and in many 
 cases identical. Charles, J., however, could not accept 
 the defendant's statement that he never made bets with 
 other people, and was of opinion that the defendant was 
 estopped by his conduct from saying that he betted as 
 principal. 
 
 At one time it was thought that a stakeholder, who Stakeholders. 
 receives deposits from the parties to a contract by way 
 of gaming and wagering was the agent of all the 
 parties, or rather their trustee, instead of being the 
 agent severally of each of the depositors with regard 
 to the respective deposits. The effect of the former view 
 
 (t) Moore v. Peachey, 7 T. L. R. 748.
 
 190 THE LAW OF GAMBLING. 
 
 was that the several contracts of gratuitous bailment 
 did not exist ; the depositary was the trustee of all the 
 parties, and as such, where the trust was a legal one, 
 the request of any individual depositor for a return 
 of his deposit did not ground an obligation on the 
 trustee (t<). But there was a decision to the contrary 
 in the case of Eltham v. Kingsman (x), and also in 
 Hastelotv v. Jackson (y). In the case of Hampden v. 
 Walsh (z), in the unanimous judgment of the Court 
 (Cockburn, C. J., and Mellor and Quain, JJ.), it was 
 decided and stated : "It may be true that he (the 
 stakeholder) is the agent of both parties in a certain 
 sense, so that, if the event conies off, and the authority 
 to pay over the money by the depositor be not revoked, 
 he may be bound to pay it over. But primarily he is 
 the agent of the depositor, and can deal with the money 
 deposited so long only as his authority subsists." Hence, 
 then, in considering the obligations of the stakeholders, 
 the several contracts of gratuitous bailment have to be 
 looked at, and the purpose or final object of the bail- 
 ment, whether valid, illegal, or void, will be immaterial 
 so far as the right of the depositors to rescind the 
 bailee's authority is concerned. 
 Eescissionof The authorities on the revocation of a stakeholder's 
 
 stakeholder's . . 
 
 authority. authority will now be reviewed. It will be seen that the 
 power of rescission exists even after the decision of the 
 event, until there has been an actual payment over to the 
 
 () Brandon v. Hiblert, 4 Camp. 37 ; Bland v. Collett, 4 Camp. 
 157 ; Emery v. Richards, 14 M. & W. 728; 15 L. J. Ex. 49; 
 Marryat v. Broderick, 2 M. & W. 369 ; 1 Jur. 242. 
 
 (z) Eltham v. Kingsman, 1 B. & Aid. 683. 
 
 (y) Rastelow v. Jackson, 8 B. & C. 221. 
 
 (z) Hampden v. Walsh, 1 Q. B. D. 189 ; 45 L. J. 238 ; 33 L. T. 
 852; 24 W. E. 607.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 191 
 
 winner. In the case of Varney v. Hickman (a), which 
 is a leading authority on the construction of section 18 
 of 8 & 9 Yict. c. 109, the facts were as follows : The 
 plaintiff and one Isaacs had deposited 201, each with 
 the defendant on the event of a match between two 
 horses. Before the race was run the plaintiff gave 
 notice to the defendant that he declined the bet, and 
 demanded back his deposit. The plaintiff not attend- 
 ing to contest the race, Isaacs was declared the winner, 
 and the amount of the two deposits was handed over to 
 him by the defendant. The plaintiff brought his action 
 to recover Ms deposit as money had and received. The 
 defendant relied on section 18 of the statute to show 
 that the action could not be maintained. Maule, J., 
 said : " This cannot be considered to be an action 
 brought for recovering a sum of money alleged to be 
 won on a wager ; nor do I think it is an action to 
 recover a sum deposited in the hands of the defendant 
 to abide the event of the wager. That must necessarily 
 mean an action to be sustained on the ground of the 
 
 existence and the determination of the wager 
 
 As soon as the defendant received notice from the 
 plaintiff that he declined to abide by the wager, the 
 money ceased to be money deposited in the hands of 
 the former to abide the event, and became money of 
 the plaintiff's in his hands without any good reason 
 for detaining it." Similarly, in Martin v. Heicson (b), 
 Parke, B., held that the statute did not apply where 
 a party seeks to recover his stake upon a repudiation of 
 the wagering contract. In that case the repudiation 
 
 ; (a) Varney v. Hickman, 5 C. B. 271 ; 5 D. & L. 364 ; 17 L. J. 
 C. P. 102 ; ante, p. 140. 
 
 (6) Martin v. Hewson, 10 Exch. 737 ; 24 L. J. Ex. 174 ; 1 
 Jur. N. S. 214.
 
 THE LAW OF GAMBLING. 
 
 was prior to the ascertainment of the event of the 
 wager. In the Irish case of Graham v. Thompson (c} 
 a plea in a similar action was advanced, namely, " that 
 the money was money deposited in the hands of the 
 defendant to abide an event on which a wager had 
 thereupon been made, to wit, &c., and that that wager 
 had not been repudiated, or any demand of the said 
 money, or any part thereof, made upon him by the 
 plaintiff before the event on which the said wager had 
 been made had taken place, and the said wager had 
 been decided." But the demurrer to the plea succeeded 
 on the ground that it was consistent with it that the 
 plaintiff had repudiated the wager before the defendant 
 had paid over the money to the winner. This case 
 carries the power to rescind one step further forward, 
 viz., to a period after the event, which shows that the 
 bailment is revocable until finally executed by payment 
 over pursuant to its terms. The decision of Hampden 
 v. Walsh (d} is to the same effect. The wager in that 
 case was about the possibility of proving the rotundity 
 of the world. The wager was decided according to the 
 agreement. The plaintiff lost the wager, . and gave the 
 stakeholder notice, prior to his having done so, not to 
 pay over the plaintiff's deposit to the winner. It was 
 held, on the principles of bailment above explained, and 
 on the authorities hereinbefore reviewed, that the plain- 
 tiff, under the circumstances, was entitled to recover 
 his deposit. The case of Diggle v. Higgs (e), which is 
 stated at some length in Chapter VII. on the construction 
 
 (c) Graham v. Thompson, Ir. Eep. 2 0. L. 64. 
 
 (d) Hampden v. Walsh, I Q. B. D. 189; 45 L. J. Q. B. 238; 
 33 L. T. 852 ; 24 W. E. 607. 
 
 (e) Diggle v. Higgs, L. E. 2 Ex. Div. 422 ; 46 L. J. Ex. 721 ; 
 37 L. T. 27 ; 25 W. E. 607, 777.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 193 
 
 of the proviso clause of section 18 of the statute, is a 
 further authority to same effect. Similarly, in the 
 Privy Council, in the case of Trimble v. Hill(f}. 
 
 The case of Savage v. Madder (gr), at least so far as Savage v. 
 obiter dicta contained in it, has been finally overruled. 
 Martin, B., in that case said, 'the effect of the statute 
 was to prevent any action being brought by the winner 
 himself in respect of moneys deposited in the hands of 
 a stakeholder to abide the event. But the plea in that 
 case, in answer to the plaintiff's declaration for money 
 had and received to the use of the plaintiff, and for 
 interest, and on accounts stated, was " That the said 
 money is money deposited in the hands of the defen- 
 dant to abide the event on which a wager was made, 
 and is claimed by the plaintiff as the winner of the said 
 wager, together with other money won thereon, and 
 the plaintiff did not repudiate the said wager, or de- 
 mand back his said money before the event of the said 
 wager, and has never repudiated the said wager or 
 claimed the said money on any other ground than as 
 winner of the said wager, and no part of the said 
 money was or is a subscription or prize contribution, 
 nor was or is due on any agreement to subscribe or 
 contribute for or towards any plate, prize, or sum of 
 money to be awarded to the winner or winners of 
 lawful game, sport, pastime, or exercise." Hence it 
 appears that the plaintiff was claiming not only his own 
 deposit, but also winnings. 
 
 It is clear that a depositor, whether winner or loser, 
 can recover his deposit prior to payment over pursuant 
 
 (/) Trimble v. Hill, 5 App. Gas. 342 ; 49 L. J. P. 0. 49 ; 42 
 L. T. 103 ; 28 W. E. 479. 
 
 ((j) Savage v. Madder, 36 L. J. Ex. 178; 16 L. T. 600; 15 W. 
 K. 910. 
 
 O. O
 
 194 THE LAW OF GAMBLING, 
 
 to the agreement. If A. had been declared the winner, 
 but the stakeholder refused to hand over the stakes, A. 
 could sue him for his deposit. In the case of Batty v. 
 Marriott (A), on the basis of an erroneous construction 
 of the proviso clause of sect. 18 of the statute 8 & 9 Yict. 
 c. 109, it was held that the winner might recover the 
 whole of the stakes, but Diggk v. Siggs (i) is a binding 
 decision to the contrary. 
 
 As the stakeholder's authority can thus be revoked, it 
 follows that he could not maintain an action to obtain a 
 deposit from an intended depositor : Clayton v. Dilky (/). 
 
 The Gaming Act, 1892, has not altered the depositor's 
 rights, as will be seen in the next chapter. 
 
 Partnership. There appear to be two commonly occurring instances 
 of partnership, namely, where two or more persons con- 
 tribute to a fund to be applied by them in particular 
 wagering transactions, or where they conduct the busi- 
 ness of commission agents generally. It is a common 
 rule that, between partners, whether they are so in 
 general or for a particular transaction only, and whatever 
 be the nature of the partnership venture, no account 
 will be taken at law. The rule applies where all the 
 moneys have been received and paid by one partner (k) . 
 If the partners cannot agree on their accounts, the same 
 must be taken in a properly constituted partnership 
 action in the Chancery Division. Where, however, 
 no general account is involved, or 'where one partner 
 has given the other a security, an action at law can be 
 maintained. 
 
 (A) Batty v. Marriott, 5 0. B. 818 ; 17 L. J. 0. P. 215 ; 12 
 Jur. 462. See Chap. VII. p. 156. 
 
 (i) Diggle v. Higgs, 2 Ex. Div. 422 ; 46 L. J. Ex. 721 ; 37 L. 
 T. 27 ; 25 W. E. 777 (0. A.), reversing 25 W. E. 607. 
 
 (j} Clayton v. Dilky, 4 Taunt. 165. 
 
 (k) Bovill y. Hammond, 6 B. & 0. 149 ; 9 D. & E. 186.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 
 
 An instance of an action at law, upon an account stated 
 between partners and a security given for payment of 
 the balance, is found in the case of Johnson v. Lans- 
 ley (ni). The plaintiff and one Hunt jointly made bets 
 with third persons on horse races. Hunt received the 
 winnings, and accepted a bill drawn on him by the 
 defendant, who subsequently indorsed it to the plaintiff. 
 The defendant contended at the trial that the original 
 wagering contracts between Hunt and the third person 
 were void or illegal, and that in effect the Court 
 was asked collaterally to enforce the invalid contracts. 
 But this contention failed. The losers had paid ; Hunt 
 had received the winnings on behalf of himself and the 
 plaintiff ; the losers could not recover back from Hunt 
 the money which they had paid to him. Hence, as 
 Maule, J., said in the course of the argument, " Surely 
 a duty arises on the part of Hunt to pay over his share 
 to his co-partner." Jervis, C. J., in his judgment, after 
 referring to the statute 8 & 9 Yict. c. 109, stated that 
 the transaction was not illegal, and that Hunt was 
 bound on every principle of justice to pay this money to 
 Johnson. The circumstance of Lansley being substi- 
 tuted for Hunt could not make that illegal which as 
 between Johnson and Hunt would not have been so. 
 Maule, J., said : " The money which was the considera- 
 tion for this bill was money which Hunt was bound to 
 account for to Johnson. The losers could not get it 
 back from Hunt, and it would be a very unjust thing 
 that he should keep the whole." 
 
 In the case of Beeston v. Beeston (), the plaintiff de- 
 clared on a cheque drawn by the defendant in his 
 
 (m) Johnson v. Lansley, 12 0. B. 468. 
 
 (n) Beeston v. Beeston, 1 Ex. D. 13 ; 45 L, J, Ex. 230 ; 33 L. T. 
 700 ; 24 W. E. 96. 
 
 02 
 
 195
 
 THE LAW OF GAMBLING. 
 
 favour on a certain bank and dishonoured. The plaintiff 
 proved that the defendant had received money on his 
 behalf, and that the cheque in question was given in 
 payment thereof. The defendant contended that the 
 plaintiff could not recover from him such money, as it 
 was a share of winnings received in respect of joint 
 wagering transactions, and that consequently the cheque 
 was given without consideration. Amphlett, B., stated: 
 " There is no illegality in A. saying to B., ' Go and 
 make bets on our joint account, and whatever the win- 
 nings on such bets may be shall be shared bet ween us.' " 
 It is true that Baron Amphlett cites the case of Sharp 
 v. Taylor (o) with approval ; but that was unnecessary 
 for the decision. 
 
 The cases of Johnson v. Lansley and Beeston v. Beeston 
 were cited in argument in the case of Higginson v. 
 Simpson (p}. In the last-mentioned case the plaintiff 
 brought his action to recover 50/. by way of compensa- 
 tion for giving the defendant the name of a horse likely 
 to win the Grand National Steeplechase. The facts, as 
 found by the jury, were as follows : The plaintiff and 
 defendant agreed together that the plaintiff (a profes- 
 sional betting man) was to lay out 21. in betting on a 
 horse Regal for a particular steeplechase at the odds of 
 25 to 1, i. e., taking the odds or betting 11. to 25 1. on 
 the horse. If Regal won, it was agreed that the plain- 
 tiff was to have 50/. from the defendant, to be paid out 
 of the defendant's winnings if he (the defendant) backed 
 Regal ; if Regal lost, the plaintiff was to pay the de- 
 fendant 21. The defendant did back Regal, and the 
 horse won, and the defendant thereby won 2501. 
 
 On these findings it was held in the Divisional Court 
 
 (o) Sharp v. Taylor, 2 Ph. 801. 
 
 (p] Higginson v. Simpson, 2 C. P. D. 76 ; 46 L. J. C. P. 192 ; 
 36 L. T. 17 ; 25 W. K. 303.
 
 OBLIGATIONS ARISING OUT OF VOID TRANSACTIONS. 197 
 
 that, in substance and in fact, the plaintiff and defen- 
 dant had inter se entered into a wagering contract, and 
 that whether or not the object of the transaction was to 
 remunerate the plaintiff for his " tip," the contract itself 
 was none the less void. It will be seen, however, that 
 the facts are distinguishable from the cases in which A. 
 employs B. as his agent to make a bet with C., and then 
 sues B. for money paid to B. by C. to the use of A. ; 
 and, further, are distinguishable from, though somewhat 
 akin to, cases in which A. and B. enter into a particular 
 transaction on their joint behalf for instance, by jointly 
 wagering with C., and B. subsequently receives win- 
 nings from C. on behalf of himself and A. The facts, 
 therefore, distinguish the case from that of Tenant v. 
 Elliott on the one hand, and Beeston v. Beeston on the 
 other. 
 
 No case is reported in which the Court of Chancery 
 or the Chancery Division has taken the accounts. But 
 if there be a legal obligation between the partners, it is 
 impossible to see on what ground the Chancery Division 
 could refuse to take such accounts. In Read v. Ander- 
 son the employment of commission agents was held to 
 be a valid occupation ; if that be so, then any partner- 
 ship for the same purpose must be lawful : a partnership 
 action would lie (q). The submission here made must, 
 however, be sharply and decisively contrasted with those 
 cases where the partnership is illegal. It is apprehended 
 that if, in the course of taking the accounts in an action 
 for the dissolution of a partnership in a commission 
 agent's business, it was found that the partners had 
 been offending against the Betting House Acts, the 
 chief clerk would certify accordingly, and the Court 
 would then refuse to proceed. 
 
 (<f) Post, pp. 204 et eeq.
 
 198 
 
 THE LAW OF GAMBLING. 
 
 The Gaming 
 Act, 1892. 
 
 Effect. 
 
 CHAPTER IX. 
 
 THE GAMING ACT, 1892. 
 
 THE chief practical differences in a civil Court between 
 holding a transaction to be illegal and holding the same 
 to be void appear to arise in connection with the rights 
 of agents, and of third persons, who make payments in 
 respect of the invalid transaction, and in respect of 
 partnerships, for the purposes of effecting the invalid 
 transactions. The difference is also strongly marked in 
 respect of securities ; but with regard to gaming and 
 wagering, the effect of the statutory enactments has, in 
 respect of such securities as are comprised within the 
 statute 5 & 6 Will. IV. c. 41, been to remove such 
 distinction. 
 
 On the 20th May, 1892, a statute was passed, intituled 
 "An Act to amend the Law concerning Games and 
 Wagers," whereby it was enacted that any promise, 
 express or implied, to pay any person any sum of money 
 paid by him under or in respect of any contract or 
 agreement rendered null and void by the Act of the 
 8 & 9 Viet. c. 109, or to pay any sum of money by way 
 of commission, fee, reward, or otherwise in respect of 
 any such contract, or of any services in relation thereto 
 or in connection therewith, shall be null and void, and 
 no action shall be brought to recover any such sum of 
 money." 
 
 The effect, then, of this amendment of the law is to 
 remove some of the more substantial differences which
 
 THE GAMING ACT, 1892. 
 
 existed in the consequences of the statute of 8 & 9 Yict. 
 c. 109, having enacted that contracts therein comprised 
 should be null and void, as contradistinguished from 
 being illegal. It prevents the agent who has negotiated 
 a bet, or the third party who has discharged another's 
 debt of honour, from maintaining an action in respect 
 of his services or disbursements. It thus abrogates the 
 principles which underlaid the cases of Jessop v. Lut- 
 wyche, Knight v. Cambers, Rosewarne v. Billing and others, 
 and Read v. Anderson (a). 
 
 The Act is not retrospective. In the case of Knight v. 
 Lee (ft), the plaintiff, a betting agent, sued the defend- 
 ant in respect of a cause of action analogous to that in 
 the case of Read v. Anderson. The transactions in ques- 
 tion had been effected prior to the passing of the Act ; 
 but the action was not commenced until after that date. 
 It was held that the Act only applied to transactions 
 posterior to the date of its passing, and that in respect 
 of disbursements by an agent prior to such date, an action 
 could be maintained to recover such money (c). 
 
 In the case of Tatam v. Reeve (d), it was unsuccess- Tatam 
 fully contended that the Act did not apply to the fol- 
 lowing facts : The defendant requested the plaintiff to 
 settle an account which he forwarded to him. The 
 account purported to show that the defendant was in- 
 debted to four persons named in certain sums set oppo- 
 site their names. The plaintiff paid the sums to the 
 persons named on the same day. The sums were due 
 
 (a) Ante, pp. 166, 178. 
 
 (b) Knight v. Lee, (1892) 1 Q. B. 41 ; 62 L. J. Q. B. 28 ; 67 
 L. T. 688 ; 41 W. E. 125. 
 
 (c) A similar decision on 8 & 9 Viet. c. 109, is Moon v. 
 Durden, 2 Ex. 22 ; 12 Jur. 138. 
 
 (d) Tatam v. Reeve, (1893) 1 Q. B. 44 ; 62 L. J. C. L. 30 ; 5 E. 
 83 ; 67 L. T. 683 ; 41 W. E. 174 ; 57 J. P. 118.
 
 200 THE LAW OF GAMBLING. 
 
 from the defendant to the persons named for bets on 
 horse races which the defendant had made and lost, and 
 the payments were made after the 20th May, 1892. 
 The plaintiff stated that the amounts paid by him were 
 not in respect of any bets made by him on behalf of the 
 defendant ; that he had simply paid them on the defen- 
 dant's request, and was not in any way liable to pay 
 them. It was not stated that the defendant knew that 
 the payments were for bets. On behalf of the plaintiff 
 it was contended that he did not pay the money " under 
 or in respect of " any contract rendered void by 8 & 9 
 Yict. c. 109, and that he merely paid upon the request 
 of the defendant, and under a .promise to repay him 
 implied from that request. Lord Coleridge, C. J., said, 
 with regard to Read v. Anderson, that it really cut at 
 the root of the value and principle of the statute, because 
 it was a decision that if you employed somebody else to 
 do that which you could not, so as to make it effectual 
 at law, do yourself, you could, in effect, make a good 
 contract in respect of a gaming debt. After citing the 
 Act of 1892, the Lord Chief Justice added : I cannot 
 feel any doubt or hesitation in coming to the conclusion 
 that "the payments were in respect of a contract or 
 agreement rendered null and void by 8 & 9 Yict. c. 109. 
 I agree that they were not paid ' under ' such a con- 
 tract or agreement, because there was no contract of 
 betting or gaming between the plaintiff and the defen- 
 dant ; but the money was paid in respect of gaming 
 debts which the defendant owed to persons to whom the 
 plaintiff paid it, and it was paid in order to discharge 
 those debts. ... If it was the case of a man deceived 
 into making payments in respect of a matter he knew 
 nothing whatever about, there would, at any rate, be 
 something to make us sorry to come to the conclusion
 
 THE GAMING ACT, 1892. 201 
 
 that he could not recover." Wills, J., was of the same 
 opinion. He disclaimed the suggestion that the ohject 
 of the Act was solely to get rid of the decision of Read 
 v. Anderson. He held that the words " in respect of " 
 were inserted purposely, and with the intention of 
 striking at transactions such as the one before the 
 Court. He further pointed out that this construction 
 would not work any great injustice, because if a person 
 pays money for another upon what amounts to a repre- 
 sentation that it is not payable in respect of any con- 
 tract or agreement which comes within the Act, the 
 person on whose behalf the money is paid would be 
 estopped from setting up the Act as an answer to the 
 claim of the person who paid it. With regard to this Estoppel, 
 principle of estoppel, the cases of its operation in refe- 
 rence to securities given for an illegal consideration were 
 considered in Chapter VI., and may be consulted on 
 its probable application to this question (c) . " Estoppel," 
 said Bowen, L. J., in the case of Loic v. Bouverie (d} t 
 "is only a rule of evidence ; you cannot found an action 
 upon estoppel. Estoppel is only important as being 
 one step in the progress towards relief on the hypothesis 
 that the defendant is estopped from denying the truth 
 of something which he has said. An illustration of a 
 case of that kind of estoppel filling up the gap in the 
 evidence which, when so filled up, would produce this 
 right to relief, is found in the case of In re Bahia and 
 San Francisco Railway Company (e) . Btirrowes v. Lock (/) 
 
 (c) Ante, pp. 88 et seq. 
 
 (d) Lowv. Bouverie, (1891) 3 Ch. 82; 60 L. J. Ch. 594; 65 
 L. T. 533 ; 40 W. E. 50. 
 
 (e) In re Bahia and San Francisco Raihvay Company, L. E. 
 3 Q. B. 584 ; 37 L. J. Q. B. 176 ; 18 L. T. 467 ; 16 W. E. 862. 
 
 (/) Burrowea v. Lock, 10 Ves. 470.
 
 202 THE LAW OF GAMBLING. 
 
 was a case of estoppel. It was a case where there was a 
 right to relief on the hypothesis that the defendant was 
 precluded from denying the truth of a particular fact :" 
 The facts in Low v. Bouverie were as follows : An 
 intending lender applied to the trustee for informa- 
 tion as to previous charges on certain trust pro- 
 perty ; the trustee returned an equivocal answer, and 
 not such a clear and unambiguous one as would raise 
 an estoppel. The intended incumbrancer advanced the 
 money, and took a charge on the trust funds ; he 
 subsequently discovered that there were prior incum- 
 brances to a. large amount. He sought to fix the trustee 
 with liability. There was no actual fraud, and there 
 was no warranty given by the trustee, and the facts did 
 not support an estoppel. Hence there was no relief. 
 
 Result. The result is, that where a debtor requests a third 
 
 person to pay and discharge a debt for him, such third 
 person is put on inquiry, aye or nay, is the debt in 
 respect of a contract of gaming and wagering? A 
 false and definite answer would ground an action for 
 deceit or raise an estoppel in such an action as Tatam v. 
 Reeve. 
 
 Loan by third The effect of the Gaming Act, 1892, has not been 
 decided with reference to a loan by a third person to a 
 debtor who owes money under a gaming or wagering 
 contract. As in Tatam v. Reeve (g), the advance by the 
 third person would not be under the wager, and the 
 question is, whether the fact that the payment was not 
 made to the creditor on the wager would suffice to 
 render the payment one not in respect of the wager. 
 Two positions seem to be clear : first, if the lender had 
 
 (g) Tatam v. Reeve, (1893) 1 Q. B. 44 ; 62 L. J. C. L. 30; 5 E. 
 83; 67 L. T. 683; 41 W. E. 174; 57 J. P. 118.
 
 THE GAMING ACT, 1892. 
 
 no knowledge of any wagering transactions of the 
 borrower, and was ignorant of his probable application 
 of the money, the lender would be entitled to recover ; 
 secondly, if the lender agreed with the borrower that 
 the borrower should apply the money so lent to the dis- 
 charge of the latter's gaming or wagering debts, the 
 lender would not be entitled to recover. In the first 
 case the lender would have made no payment either 
 under or in respect of a wagering debt ; in the second 
 case, he would have done so in respect of a wagering 
 debt, seeing that he has expressly stipulated that the 
 loan shall be applied for the purpose of paying the 
 debt. The difficulties will arise when the facts bring 
 cases between the two positions. Further, if a loan 
 were made to the debtor, with a knowledge that he 
 might use it for the discharge of his gaming or wager- 
 ing debts, the lender, it is submitted, would still be 
 entitled to recover (h) ; but if the loan were made for 
 the purpose of the debtor's discharging therewith his 
 gaming and wagering debts, though without express 
 stipulation in that behalf, then the loan, though not 
 directly in respect of, is yet indirectly in respect of, 
 such void transaction (?), and it is suggested that the 
 lender would be disentitled to recover. 
 
 The right which was recognised in the case of Right to 
 Bridger v. Savage (/), of the winner to recover money ningsfrom 
 actually paid by the loser of a wager to the winner's JfJwo 
 agent, or to some third person on his behalf, has not has received 
 
 them. 
 
 (h) Bagot v. Arnott, IT. Rep. 2 0. L. 1. 
 
 (t) Pearce v. Brooks, L. B. 1 Ex. 213; 35 L. J. Ex. 134 ; 12 
 Jur. N. S. 342 ; 14 L. T. 288 ; 14 W. E. 614 ; Cannan v. Bryce, 
 3 B. & Aid. 179 ; M'Kinnell v. Rolinson, 3 M. & W. 434 ; Foot 
 V. Baker, 5 M. & GK 335 ; see ante, pp. 112 et seq. 
 
 (j) Bridger v. Savage, 15 Q. B. D. 363 ; 54 L. J. Q. B. 464 ; 
 53 L. T. 129 ; 33 W. E. 891 ; 49 J. P. 725.
 
 204 THE LAW OF GAMBLING. 
 
 been affected by the Act. In the case of Benjam.cn v. 
 De Hattos (k), the plaintiff's right was recognised, and 
 the adverse contention was treated almost as incapable 
 of serious argument. The judgment was : " The Act 
 is very plain in its terms. It did not enable a person 
 who had received money on behalf of another to retain 
 it to his own use." 
 
 Power, on The right of a depositor to recover his deposit is 
 
 rescission, to alfi0 una ff ecte( i ^ y the Act. In the case of 0' 'Sullivan 
 
 recover & ** 
 
 deposit from v . Tlwmas (/), the plaintiff had agreed to run one 
 a stakeholder. . 
 
 Hughes for 51. a side, and the 10/. had been deposited 
 
 in the hands of the defendant as stakeholder. The 
 race was run. The plaintiff lost the race, where- 
 upon he directed the defendant not to pay over to the 
 winner the sum of 51. deposited by him (the plaintiff). 
 The plaintiff subsequently sued to recover his 51., and 
 in the County Court he obtained judgment. As a 
 result of an appeal to the Divisional Court, Wills, J., 
 in the course of his judgment, stated : " The only 
 question was whether the money deposited to abide the 
 result of the bet to be paid over to the other party to 
 the bet if he won came within the terms of the Act 
 ' any sum of money paid by the person making the 
 bet under a wagering contract . . .' I am of opinion 
 that the action will lie, and that paid means paid ; out 
 and out.' It does not mean money merely deposited for 
 the purpose of paying some other party." Wright, J., 
 was also of opinion that the terms of the Act referred 
 to an actual and absolute payment, and pointed out 
 
 (k) Benjamen v. De Mattos, 63 L. J. Q. B. 248 ; 70 L. T. 560 ; 
 42 W. E. 284 ; 38- S. J. 238 ; 10 T. L. E. 221. 
 
 (Z ) 0' Sullivan v. Thomas, (1895) 1 Q,. B. 698 ; 64 L. J. Q. B. 
 398.
 
 THE GAMING ACT, 1892. 205 
 
 that the opposite construction would tend to defeat the 
 Act by allowing retention of the deposit, and so giving 
 the other party the practical certainty of being paid the 
 bet. 
 
 On the footing of this decision, the law being un- Partnership, 
 altered by the Act, it follows that the decisions in 
 Johnson v. Lansley, Beeston v. Beeston, are still law, 
 and that one partner in a wagering transaction could 
 recover from the other his share of the balance of 
 winnings on account stated. The one partner who 
 sued on such an account would admit the validity as 
 against himself of the payments and disbursements 
 made by the other. But the Act appears to have 
 accentuated a difficulty. In the absence of authority, 
 a hypothetical case alone can be stated. A. and B. 
 contribute a fund of 1,000/. for embarking on a series 
 of difference transactions. The possession of the fund, 
 and actual management of the business, is left to B. 
 B. operates. He makes some losses, part of which he 
 pays, but he receives winnings in excess of the losses. 
 B. renders an account to A., who asserts it to be fraudu- 
 lent. A. thereupon issues a writ claiming dissolution 
 of partnership and consequential relief. In taking the 
 accounts, the following difficulties may arise: First, 
 A. objects to the payment of the then unpaid losses, 
 which he contends are not debts within section 44 
 of the Partnership Act, 1890 ; secondly, A. objects to 
 the allowance of the disbursements made by B. in re- 
 spect of the losses, setting up the Gaming Act, 1892. 
 If both these objections are allowed, the items would 
 be struck out. Can it be that A. would be entitled to 
 a certificate bringing out the winnings without any 
 deductions in respect of the paid losses ? In the parti- 
 cular instance of an actual contribution by A. to the
 
 206 THE LA.W OF GAMBLING. 
 
 partnership fund, B. would have paid the losses out of 
 property belonging jointly to himself and A., and such 
 payments would be voluntary payments made by B. 
 with the joint property; B.'s position would not be the 
 same as if he had made these disbursements with his own 
 separate property, and then claimed indemnity against 
 the firm. Similarly, so far as he made payments of the 
 losses out of the winnings, such payments would have 
 been made out of joint property. A.'s position with 
 regard to the losses paid would be the same as if he had 
 handed over the amount of his share thereof to B., and 
 directed B. to make the payment therewith. To that 
 extent the payment would be a voluntary payment 
 made by A. through the medium of his agent B., and 
 with such payment he would be properly charged (m). 
 The unpaid losses, however, are a difficulty, and the 
 Court would not compel an unwilling partner to dis- 
 charge them. 
 
 (m) Bayntun v. Cattle, 1 M. & E. 265.
 
 ( 207 ) 
 
 CHAPTER X. 
 
 SPECULATION ON THE STOCK EXCHANGE. 
 
 THE Stock Exchange and the operations conducted 
 there to a considerable extent lie on the borderland of 
 the subject of gambling. The chief legal problem The chief 
 which is presented is the distinction between speculative tions : 
 
 sales and purchases on the one hand, and difference 
 transactions on the other. The rules of the Stock purchases not 
 
 wagering. 
 
 Exchange are so framed as to render mere wagering 
 transactions at least a theoretical impossibility. It is 
 deemed desirable to give a succinct account of the ope- 
 rations on the Stock Exchange and of its rules. 
 
 There are two classes of members of the Exchange Machinery 
 the jobbers and the brokers. The jobbers are principals Exchange. 
 in all contracts, and deal solely with the brokers. The 
 brokers are never principals, but agents only of their 
 outside clients ; of course, the rules do not prevent a 
 broker from dealing on his own account, and not on 
 behalf of a client, and, in fact, brokers do so deal. The 
 clients instruct their brokers to buy from or to sell to 
 the jobbers. The broker's remuneration is his commis- 
 sion. The jobber, when applied to by the broker, gives 
 a quotation for the stocks or shares, at the lower figure 
 he offers to buy, and at the higher figure to sell. The 
 jobber, knowing nothing of the outside clients, deals 
 with the broker on the footing that the latter is per- 
 sonally responsible to him on every contract entered
 
 208 
 
 THE LAW OF GAMBLING. 
 
 into. The majority of the transactions for sale and 
 purchase are made for completion on periodical days, 
 occurring either monthly or bi-monthly, according to 
 the stock dealt in ; such days are called settling days. 
 Settling day. On settling day, on the one hand, there must be a pay- 
 ment in cash; and, on the other, the short, though 
 reasonable, time, which is usually some ten days within 
 which actual delivery and transfer of the stock or shares 
 must be made, begins to run. If the jobber does not 
 deliver to the purchasing broker within the time allowed, 
 the latter may instruct the official broker to the Stock 
 Exchange to buy in the stock against the jobber, who 
 will be liable for all charges incurred thereby. The 
 penalty which a member of the house incurs on failure 
 to meet his obligations is the liability of immediately 
 being declared a defaulter, which determines his mem- 
 bership of the house, and prevents him from dealing 
 on or entering the Stock Exchange. 
 
 It will thus be seen that this machinery is as appli- 
 cable for the purchase of consols or other gilt-edged 
 securities for the purposes of investment as for the pur- 
 chase for a rise, or the sale for a fall, of shares of a spe- 
 culative character. In the former case, the transaction 
 is really closed on the settling day ; but in the latter it 
 may only be nominally closed then, and, in reality, by 
 other transactions be continued until the next settling 
 day. 
 
 A bull i. e., one who buys for a rise or a bear L e., 
 one who sells for a fall may on settling day be unable 
 or undesirous of taking or making delivery, or willing 
 upon terms to forego his rights ; but, at the same time, 
 he may deem it advisable to continue his speculation. 
 The operations which follow are known by the general 
 term, " continuations." The speculator then instructs 
 
 Bulls and 
 bears. 
 Continua- 
 tions. 
 Contango 
 and back- 
 wardation.
 
 SPECULATION ON THE STOCK EXCHANGE. 209 
 
 his broker to carry over. Assuming the speculator to 
 have been a bull, the broker then endeavours to resell 
 the shares which the bull desires to carry over ; on such 
 resale, the purchaser may be the original vendor or 
 another jobber ; the price at which this repurchase 
 would be effected would generally be the making-up 
 price of the day, which would be fixed by the orders of 
 the committee of the Stock Exchange. By a collateral 
 agreement the broker then repurchases the stock or 
 shares from the jobber at the same price, plus a pre- 
 mium for the accommodation ; this premium is called 
 a contango. Similarly, when the speculator is a bear, 
 a similar set of transactions would result in a contango 
 being paid by the bear for the accommodation of not 
 making delivery on the settling day. Where the broker 
 arranges the carrying over with the same jobber as was 
 concerned in the original transaction, the contango is 
 simply the consideration for the postponement of the 
 completion of the contract. But where the broker does 
 not or cannot arrange the continuation with the original 
 jobber, he completes the original contract with him, and 
 on the security of the stocks or shares, purchased by the 
 bull, borrows the required money from another jobber ; 
 such other jobber " takes in " the stocks or shares, and 
 the property in the particular parcel of stocks or shares 
 vests in him, though with an obligation to deliver on 
 the next settling day a like parcel of the same stocks or 
 shares. The transaction is more than a mere pledge. 
 On the other hand, the market may have run in favour 
 of the bull, and then, instead of needing accommodation 
 at the expense of a contango, he may be in a position to 
 offer accommodation on terms advantageous to himself. 
 For instance, a large amount of stock may have been 
 withdrawn from the market, and the jobber may be 
 o. p
 
 210 THE LAW OF GAMBLING. 
 
 unable to deliver to the broker the stock which he has 
 purchased on behalf of the bull. The jobber must 
 obtain accommodation, and if necessary pay for it ; a 
 premium so paid by him is called a backwardation. 
 
 When the continuations are ended, the final settle- 
 ment is brought about, either by an actual delivery of 
 the stocks or shares purchased, or by a reverse contract 
 of sale, whereunder the original purchaser becomes a 
 vendor of an equivalent number of stocks or shares. 
 The final result to the outside speculator is a gain or a 
 loss. The result to the speculator may be the same as 
 if he had entered into a mere difference transaction. 
 But he has employed a different machinery, and has 
 utilized separate legal obligations, which could have 
 been specifically enforced, or for a breach of which 
 damages of an ascertainable amount could have been 
 recovered. 
 
 From an affidavit, sworn by some of the leading 
 members of the Stock Exchange, and used in the case 
 of Ex parts Grant, In re Plumbly (a), it appears that in 
 order to avoid delivery a similar amount of (but not 
 the identical) stocks or shares may be sold or purchased, 
 as the case may be. As, then, one member of the 
 house cannot sell to another certain shares, numbered 
 say, 1 to 20, at the then market price, and at the same 
 time agree to repurchase from him the same shares at 
 the market price at some future date, an obstacle, at 
 least formal, is placed in the way of transacting a mere 
 difference bargain. But, as a fact, stock is not num- 
 bered, and contracts for sale or purchase of a parcel of 
 shares do not earmark the particular shares by reference 
 to their numbers. 
 
 (a) Exparte Grant, In re Plumbly, 13 Ch. Div. 667; 42 L. T. 
 387 ; 28 W. E. 775.
 
 SPECULATION ON THE STOCK EXCHANGE. 211 
 
 In Grizewoodv. JBlane(b), the jury found as a fact 
 that certain transactions between a jobber, a member 
 of the Exchange, and a non-member, who had operated 
 through a broker, were mere wagering contracts. But 
 this finding of fact was stated by Brett, L. J., in 
 Thacker v. Hardy (c), to have been probably due to the 
 misunderstanding by the jury of the nature of the 
 evidence before them, and Cotton, L. J., said the find- 
 ing could not easily be justified, having regard to the 
 mode of doing business on the Stock Exchange (d). 
 In each of the judgments in Thacker v. Hardy the 
 transactions on the Exchange are recognized as real 
 sales and purchases. 
 
 But from time to time the allegation will be Alleged 
 advanced that the rules have been departed from, from the 
 For instance, in the case of Ex parte Rogers, In re rules ' 
 Rogers (e), it was sought to distinguish the transac- 
 tions from those in Thacker v. Hardy by the contention 
 that the broker had not, in fact, acted as agent for his 
 client, but had constituted himself a principal. If that 
 contention had been established, the sole parties to the 
 contracts would have been Rogers (the speculating non- 
 member of the house) and Evans (the broker) ; and as 
 to such contracts there was evidence that Rogers and 
 Evans understood that Rogers was only speculating 
 for the rise of the stocks which he bought, and never 
 intended to accept delivery, but meant to sell them 
 
 (V) Grizewood v. Blane, 11 C. B. 526 ; 12 L. J. C. P. 46. 
 
 (c) Thacker v. Hardy, 4 Q. B. D. at pp. 695, 696 ; Ex parte 
 Marnham, 2 De G. F. & J. 634; 30 L. J. Bk. 1 ; 6 Jur. N. S. 
 1273 ; 3 L. T. 516 ; 9 W. E. 131. 
 
 (d) See Evidence before Stock Exchange Commissioners, 
 1878. 
 
 (e} Ex parte fiogers, 15 Oh. Div. 207 ; 43 L. T. 163 ; 29 W. 
 E. 29. 
 
 P2
 
 212 
 
 THE LAW OF GAMBLING. 
 
 again before the account day, and to receive or to pay 
 the difference between the prices at which he bought 
 or sold. If there had been evidence of a correlative 
 intention on the part of Evans, then the contracts 
 would have been wagering contracts. But the con- 
 tention failed that Evans had acted otherwise than 
 as the broker of Rogers ; hence, the contracts were 
 between Rogers of the one part, and the jobber of the 
 other part, and whatever may have been Rogers' in- 
 tention, communicated or not to his broker, Evans, 
 there was no evidence that the jobber intended to do 
 otherwise than to make real sales and purchases : there- 
 fore the contracts in question were not wagering con- 
 tracts. 
 
 Options, calls, The form of speculation known as dealing in 
 "options" requires notice. A man holds a number 
 of particular shares which at the present time are 
 quoted at a certain figure. The holder thinks the 
 shares will increase in value ; he is in a position to 
 offer to sell those shares at a future date at an enhanced 
 price, or which is equivalent, at the present price plus 
 a premium. If the holder can find a purchaser for the 
 future date, he resolves the uncertainty of the accre- 
 tion in value to him of the shares into the certain gain 
 represented by the increase of price at which he has 
 sold. But the holder, instead of selling for a future 
 day, may sell the right of being called on to sell at a 
 future date, if so requested. The holder then sells an 
 " option," viz., the right to buy from him the parti- 
 cular shares on a particular day at a fixed price. Either 
 the purchaser of the option exercises the right or he 
 does not : if he does, then he pays the price, and accepts 
 delivery ; if he does not, then he pays the difference 
 between the price which he would have paid if he had 
 exercised the option, and the present price, i. e., the
 
 SPECULATION ON THE STOCK EXCHANGE. 213 
 
 premium agreed on. Such an option to buy is known 
 as a call. The other species of options are options 
 of selling, and are called " puts." The grantor of a 
 " put " incurs the obligation to the grantee of buying 
 from him particular stock on a particular day at a fixed 
 price. By the exercise of this right the grantee can 
 limit his risk of a fall in value of the shares. In addi- 
 tion to the foregoing, there is a third kind of option, 
 which is merely a combination of a put and call, and 
 confers the rights which either the put or the call 
 severally would have given. 
 
 Perhaps the grantor of the option to call may Options: 
 
 J When not 
 
 not be possessed of the shares in respect of which he entitled to the 
 has given the call at the time of granting it, and 
 when the option is exercised he may be compelled 
 himself to buy. In the event of his buying from the 
 grantee of the option, the result of the transactions 
 would be the payment of a difference. But this ulti- 
 mate result would not make the original transaction 
 a wagering one. But if the parties never intended a 
 real purchase, or to give the right, and desired merely 
 to give form to a transaction whereunder the one must 
 either lose the difference between the then market value 
 and the agreed price or gain the premiums, and the 
 other must make the correlative gain or loss, then the 
 whole transaction, ab initio, was a mere wagering one. 
 Similarly, the option of a " put " might formally be 
 made an element in a wagering transaction. However, 
 according to the rules of the house, the transactions of 
 Bale and purchase, or the options of sale and purchase, 
 must be real. 
 
 The rules of the Exchange forbid members to enter Prospective 
 into bargains in prospective dividends in shares or stock rules of the 
 of railway or other companies. This rule is not in-
 
 214 THE LAW OF GAMBLING. 
 
 volved in one forbidding wagering transactions. A 
 man who holds shares on which a dividend is about to 
 be declared, though of uncertain amount, is at liberty 
 to sell his right to the receipt of this uncertain sum in 
 
 Martin v. consideration of a fixed sum. In Martin v. Gibbon (e) , 
 the defendant instructed the plaintiff, who was his 
 broker, to sell for him the next dividend on 50,00 O/. 
 of South Eastern Eailway "A" Deferred Stock. The 
 plaintiff sold to a dealer, and, after the dividend had 
 been declared, paid to the dealer the difference between 
 the actual dividend declared and the amount of the 
 purchase-money. The contract was held not to be a 
 wagering one (e). The plaintiff recovered his disburse- 
 ment from the defendant. This right to indemnity 
 would remain under the general principles of agency, 
 and would not be affected by the Gaming Law Amend- 
 ment Act, 1892, which only has reference to transac- 
 tions rendered void by 8 & 9 Viet. c. 109. 
 
 If, however, the vendor of the prospective dividend 
 was not entitled to, and had no intention of becoming 
 entitled to, the stocks or shares in respect of which the 
 dividends sold were to accrue due, and the purchaser 
 was aware that the vendor was not entitled, and did 
 not intend to become entitled, the jury on such facts 
 might reasonably conclude that the transaction was a 
 wagering contract. 
 
 < 'Rigging the A species of dishonest user of the Stock Exchange is 
 
 * " 
 
 involved in the operations known as " making a market" 
 or " rigging the market." A market is made for shares 
 by buying or pretending to buy the same at a pre- 
 mium, with the intent thereby to induce the public to 
 come in and subscribe for the shares in the company, 
 
 (e) Martin v. Gibbon, 33 L. T. N. S. 561 ; 24 W. E. 87.
 
 SPECULATION ON THE STOCK EXCHANGE. 215 
 
 under the false notion that there is a bond fide premium 
 to be obtained by subscribing. An agreement by two 
 or more persons thus to cheat and defraud others is a 
 criminal conspiracy (/). 
 
 But, apart from such criminal acts, the speculative Sanction on 
 transactions are subject to legislative interference only 
 to a slight degree. The Bankruptcy Act imposes some 
 sanction. In the Bankruptcy Act, 1883, s. 28, one of 
 the grounds on which the Court could either refuse or 
 suspend the order for discharge, or grant it subject to 
 conditions, was the following : " That the bankrupt has 
 brought on his bankruptcy by rash and hazardous specu- 
 lations or unjustifiable extravagance in living." That 
 section of the Act of 1883 has now been repealed and 
 replaced by section 8 of the Bankruptcy Act, 1890, B. A. 1890, 
 whereunder the Court may either (i) refuse the dis- 
 charge, or (ii) suspend the discharge for a period of not 
 less than two years, or (iii) suspend the discharge until 
 a dividend of not less than ten shillings in the pound 
 has been paid to the creditors, or (iv) grant it on condi- 
 tions as to judgment being entered, on proof (inter alia) 
 " That the bankrupt has brought on, or contributed to, 
 his bankruptcy by rash and hazardous speculations, or 
 by unjustifiable extravagance in living, or by gambling, 
 
 (/) Scott v. Brown, Dcering, McNdb & Co., (1892) 2 Q. B. 724 ; 
 4 Rep. 42; 61 L. J. Q. B. 738; 67L.T. 782; 41W.E. 116; 57 J. P. 
 213 ; R. v. De Berenger, 3 M. & S. 67 ; Reg. v. Aspinall, 2 Q. B. D. 
 48 ; 46 L. J. M. C. 145 ; 36 L. T. 297 ; 25 W. R. 283 ; 13 Cox, 
 C. C. 563, C. A. : affirming, 1 Q. B. D. 730 ; 13 Cox, C. C. 230 ; 
 35 L. T. 738; 24 W. R. 921 ; Btgbie v. Phosphate Sewage Com- 
 pany, 1 Q. B. D. 679 ; 35 L. T. 350 ; 25 W. R. 85, C. A. : affirm- 
 ing, L. R. 10 Q. B. 491 ; 44 L. J. Q. B. 233 ; 33 L. T. 470 ; 24 
 W. R. 115 ; Marzetti's Case, 42 L. T. 206 ; 28 W. R. 541 ; Twy- 
 cro88 v. Grant, 2 C. P. Div. 469 ; 46 L. J. C. P. 636 ; 36 L. T. 
 812 ; 25 W. R. 701 ; Gray v. Lewis, L. R. 8 Ch. 1035 ; 43 L. J. 
 Ch. 281 ; 29 L. T. 12 ; 21 W. R. 923.
 
 210 
 
 THE LAW OF GAMBLING. 
 
 Bight of 
 
 official 
 
 assignee. 
 
 or by culpable neglect of bis business." If a man 
 speculates beyond his means of meeting possible losses, 
 bis speculations are rasb and hazardous (g) . 
 
 These sections last cited will be seen to be an exten- 
 sion of the principle of section 201 of the Bankruptcy 
 Law Consolidation Act, 1849 (A), whereunder it was 
 provided that " no bankrupt shall be entitled to a certi- 
 ficate of conformity under this Act, and any such certi- 
 ficate, if allowed, shall be void if he shall within one 
 year next preceding the issue of the fiat or the filing of 
 such petition have lost 200/. by any contract for the 
 purchase or sale of any government or other stock, 
 where such contract was not to be performed within one 
 week after the contract, or where the stock bought or 
 sold was not actually transferred or delivered " (i). 
 
 When a member of the house becomes a defaulter, 
 then under the rules the official assignee winds up his 
 business; he collects the differences due from other 
 members of the house, and holds the fund upon a man- 
 date to apply it amongst those members who would 
 have had claims against the defaulter in respect of 
 current transactions. It has been held that the assignee 
 holds this artificial fund by a title adverse to the trustee 
 in bankruptcy of the defaulter (&). 
 
 (g) Exparte Rogers, 13 Q. B. D. 438 ; 33 W. E. 354 ; 1 M. B. 
 E. 159 ; Ex parte Salaman, 14 Q. B. D. 936 ; 54 L. J. Q. B. 238 ; 
 52 L. T. 378; Exparte Young, 2 M. B. E. 37 ; Re Barlow, Exparte 
 Thornier, 3 Mor. 304 ; 56 L. T. 168 ; Re Rankin, 5 Mor. 23 ; 
 Re Nicholas, 7 Mor. 54; Re Jenkins, 8 Mor. 36; 39 W. E. 
 430 ; Re Keays, 9 Mor. 18. 
 
 (h) 12 & 13 Viet. c. 106. 
 
 (t) Exparte Matheson, 1 De G. M. & G. 448 ; 21 L. J. Bk. 18 ; 
 16 Jur. 769 ; Ex parte Ryder, 1 De G. & J. 317 ; 26 L. J. Bk. 
 69 ; 3 Jur. N. S. 1159 ; Ex parte Copeland, 2 De G. M. & G. 914 ; 
 22 L. J. Bk. 17 ; 17 Jur. 121 ; Ex parte BucUand, I Font. Gas. 
 in Bk. 250 ; Exparte Wade, 8 De G. M. & G. 241. 
 
 (&) Nicholson v. Gooch, 5 E. & B. 999 ; 25 L. J. Q, B. 137; 2
 
 SPECULATION ON THE STOCK EXCHANGE. 217 
 
 But speculation on the Stock Exchange was not Barnard's 
 always thus free from legislative interference. From 
 the year 1734 until 1860, the statute known as Bar- 
 nard's Act was in force (/). It was aimed at " the 
 wicked, pernicious, and destructive habit of stock- 
 jobbing," in so far as that habit tended to disturb the 
 stability of the public stocks, which, as Sir John Bomilly 
 explained, in Williams v. Trye (m), were stocks ordi- 
 narily considered as public funds or securities, guaran- 
 teed as to dividends and capital. Options, whether 
 as puts or calls, and all wagering contracts, were de- 
 clared null and void ; difference transactions subjected 
 the parties thereto to penalties, as did contracts for the 
 sale of stock of which the vendor was not possessed. 
 
 Speculative dealings in bank shares are, owing to the Leeman's 
 
 \ ' 't 
 
 dangerous influence on commerce, subject to statutory 
 restrictions. In the years 1864 to 1866, bank shares 
 were made the subject of bull operations, and the 
 shares were carried up to fictitious values. "When the 
 fall came, panic ensued. Hence the statute known as 
 Leeman's Act (n) was passed. Section 1 thereof enacts 
 that " All contracts or agreements and tokens of sale 
 and purchase which shall, from and after the 1st day 
 of July, 1867, be made or entered into for the sale or 
 transfer, or purporting to be for the sale or transfer of 
 any share or shares, or of any stock or other interest in 
 any joint stock banking company in the United King- 
 
 Jur. N. S. 303 ; Ex parte Grant, In re Plumlly, 13 Ch. Div. 667 ; 
 42 L. T. 387 ; 28 W. E. 775. 
 
 (1} Barnard's Act, 7 Geo. 2, c. 8, repealed by 23 & 24 Viet, 
 c. 28. 
 
 (m) Williams v. Trye, 23 L. J. Ch. 860 ; 18 Beav. 366 ; 18 
 Jur. 442. See also Lyne v. Siesfeld, 1 H. & N. 278 ; Wells v. 
 Porter, 3 Scott, 141 ; 2 Bing. N. C. 722. 
 
 () 30 & 31 Viet. C. 29.
 
 218 THE LAW OF GAMBLING. 
 
 dom of Great Britain and Ireland, constituted under or 
 "regulated by the provisions of any Act of Parliament, 
 royal charter, or letters patent, issuing shares or stock 
 transferable by any deed or written instrument shall be 
 null and void to all intents and purposes whatsoever, 
 unless such contract, agreement, or other token shall 
 set forth and designate in writing such shares, stock, or 
 interest by the respective numbers by which the same 
 are distinguished at the making of such contract, agree- 
 ment, or token in the register or books of such banking 
 company as aforesaid, or where there is no such register 
 of shares or stock, by distinguishing numbers, then, 
 unless such contract, agreement, or other token shall set 
 forth the person or persons in whose name or names 
 such shares, stock, or interest shall at the time of making 
 such contract stand as the registered proprietor thereof 
 in the books of such banking company, and every 
 person, whether principal, broker, or agent, who shall 
 wilfully insert in any such contract, agreement, or other 
 token any false entry of such numbers, or any name 
 or names other than that of the person or persons in 
 whose name such shares, stock, or interest shall stand 
 as aforesaid, shall be guilty of a misdemeanour and be 
 punished accordingly." 
 
 Custom of The usage of the Stock Exchange has been to dis- 
 
 Exchange. regard this statute. In the case of Perry v. Barnett (o), 
 Bowen, L. J., said: "It has been denied that it is 
 practicable to make valid contracts on the Stock 
 Exchange for bank shares in compliance with Leeman's 
 Act. I do not believe this. No doubt speculative 
 contracts cannot be made, and because the great object 
 of the Stock Exchange is to deal in speculative con- 
 
 (o) Perry v. Barnett, 15 Q. B. D. at p. 397.
 
 SPECULATION ON THE STOCK EXCHANGE. 219 
 
 tracts, Leeman's Act is not complied with, and contracts 
 are made which are void by that Act, and there is a 
 custom of the Stock Exchange that when such contracts 
 are made the brokers are to be bound as if the contracts 
 were valid." With regard to this custom, it has been 
 sought unsuccessfully to bring it within the principle 
 that if a person employs a broker to buy or sell on a 
 market of the usage of which such person is ignorant, 
 he authorizes him to make contracts upon the footing 
 of such usages as are reasonable, and as do not alter 
 the character of such contracts (p) ; both in Neilson v. 
 James (q), and in Perry v. Barnett, it was held to be an 
 unreasonable custom, which altered the character of the 
 contract : in the former case, Cotton, L. J., intimated 
 that the sooner the custom was altered the better. 
 
 The consequence of the illegality of this custom has 
 been to render, in some instances, the brokers liable in 
 damages for negligence, and to deprive them of any 
 right of indemnity. In Neilson v. James > the plaintiff, 
 who was the registered holder of certain shares in a 
 joint stock bank, instructed the defendant, his stock- 
 broker, to sell the shares. The defendant entered into 
 a contract with a stock jobber whereunder, as usual (r), 
 the jobber agreed at the settling day either to take the 
 shares himself or give the names of responsible trans- 
 
 (p) Robinson v. Mollett, L. E. 7 H. L. 802 ; 44 L. J. C. P. 
 362 ; 33 L. T. 544. 
 
 (?) Neilson v. James, 9 Q. B. D. 546 ; 57 L. J. Q. B. 369 ; 46 
 L. T. 791. 
 
 (r) Paine v. Hutchimon, L. E. 3 Ch. 388 ; 37 L. J. Ch. 485 ; 
 Coles v. Bristowe, L. E. 4 Ch. 3; 38 L. J. Ch. 81 ; 19 L. T. 403 ; 
 17 W. E. 105 ; Cruse v. Paine, L. E. 6 Eq. 641 ; 37 L. J. Ch. 
 711 ; 19 L. T. 127 ; 17 W. E. 44 : affirmed L. E. 4 Ch. 441 ; 38 
 L. J. Ch. 225 ; 17 W. E. 1033.
 
 220 THE LAW OF GAMBLING. 
 
 ferees. But this contract was invalid by reason of non- 
 compliance with the Act. The bank failed before the 
 date at which the jobber in the ordinary course would 
 have named the transferees, and he repudiated the con- 
 tract. By reason of the default of the broker, the 
 plaintiff lost at any rate the purchase money ; the broker 
 had entered into an invalid contract instead of such a 
 valid one as would have complied with the duty under- 
 taken by him. The defendant was, on appeal, mulcted 
 in damages to the extent of the purchase money. The 
 Court refused to afflict the plaintiff with presumptive 
 knowledge of the illegal custom of the Stock Ex- 
 change. 
 
 In the case of Perry and Another v. Barnett (s), the 
 plaintiffs were stockbrokers, and having received in- 
 structions from the defendant to purchase shares in a 
 certain bank, they entered into a contract with a jobber. 
 According to the usage of the Exchange, the contract 
 did not comply with the Act, though under the custom, 
 when the defendant repudiated such void contract, the 
 plaintiffs were compelled to pay the jobber. They 
 thereupon brought an action against the defendant for 
 an indemnity ; but Grove, J., found as a fact that the 
 defendant had no actual knowledge of the custom; 
 hence having regard to the character of the custom the 
 plaintiffs failed. 
 
 If the client of the broker can be proved to have had 
 knowledge of the custom, and to have acquiesced in it, 
 then he cannot maintain an action for damages as in 
 Neihon v. James, and under such circumstances, on the 
 
 (s) Perry v. Barnett, 14 Q. B. D. 467 : affirmed on appeal, 15 
 Q. B. D. 388 ; 54 L. J. Q. B. 466 ; 53 L. T. 585.
 
 SPECULATION ON THE STOCK EXCHANGE. 221 
 
 principle of Read v. Anderson (t), it has been held that 
 the broker is entitled to an indemnity (w). 
 
 Pursuant to such void contracts, there may subse- 
 quently be made actual transfers of the stock or shares, 
 and such transfers when made will create perfectly valid 
 obligations (#). 
 
 (*) Read v. Anderson, 13 Q. B. D. 779 ; 52 L. J. Q. B. 214 ; 
 48 L. T. 74 ; 31 W. B..453; 47 J. P. 311. 
 
 (u) Seymour v. Bridge, 14 Q. B. D. 460 ; 54 L. J. Q. B. 347 ; 
 29 S. J. 480 ; Barclay v. Pearce, n. to Seymour v. Bridge, 14 
 Q. B. D. at p. 462. 
 
 (x) Mortimer v. M'Calln, 9 M. & W. 636 ; 4 Jur. 172 ; 
 Loring v. Davis, 32 Ch. Div. 625 ; 55 L. J. Oh. 725 ; 54 L. T. 
 899 ; 34 W. E. 701.
 
 222 
 
 THE LAW OF GAMBLING. 
 
 Part II.-CRIMINAL. 
 
 CHAPTER XI. 
 
 INTRODUCTORY. 
 
 AT the risk, on the one hand, of treating of topics 
 which are expounded in the standard text books relat- 
 ing to summary jurisdiction (a) ; and, on the other hand, 
 of stating elementary matters of criminal procedure, it 
 is, nevertheless, deemed desirable to give the following 
 account of the criminal procedure as an introduction to 
 the consideration of the substantive offences. 
 
 Summary Jurisdiction. 
 
 Statutes. The procedure in accordance with which the powers 
 
 of summary jurisdiction have to be exercised is con- 
 tained in the Acts known as the Summary Jurisdiction 
 Acts: Jervis's Act, 11 & 12 Yict. c. 43, the Summary 
 Jurisdiction Act, 1879 (42 & 43 Viet. c. 49), the Sum- 
 mary Jurisdiction Act, 1884 (47 & 48 Viet. c. 43) ; and 
 in the several Acts giving cognizance of the offences. 
 
 Information. The function of the Court, exercising its powers, is 
 the investigation of a definite charge, to which all the 
 evidence must be material. Under the 14th section of 
 the Summary Jurisdiction Act, 1848, the making of 
 the charge is described as the statement to the defend- 
 
 (a) Paley's Summary Convictions ; Oke's Synopsis and For- 
 \nulist ; Stone's Manual.
 
 CRIMINAL PROCEDURE. 223 
 
 ant of the substance of the information. The informa- 
 tion is the "statement by which the magistrate is 
 informed of the offence for which a summons or warrant 
 is required " (b). The laying of the information is the 
 initial step in the proceedings : at the outset the offence 
 must be specified. Whilst the statement of the offence 
 need not be in writing, yet the Summary Jurisdic- 
 tion Act, 1848, contemplated that it would be : in the 
 absence of writing, there is extreme danger that an 
 offence may not be specifically stated. Where there is 
 laxity in the description of the offence in the informa- 
 tion, it is probable that the summons or warrant issued 
 to obtain the appearance of the defendant will not be 
 duly accurate, and that the looseness of the information 
 will be reproduced in the actual charge made, and sub- 
 sequently in the evidence adduced ; the final result, as 
 in the case of H. v. McKenzie (c), may be the quashing 
 of the conviction. Formerly, it was a matter of difii- Description 
 culty to describe the offence, because in all cases it did in the in- 
 not suffice to use the description contained in the statute ( on ' 
 creating the offence ; but by the Summary Jurisdiction 
 Act, 1879, s. 39, sub-s. 1, it has been enacted that " the 
 description of any offence in the words of the Act. . . . 
 or in similar words, shall be sufficient in law"(e). It 
 is unnecessary in the information to specify or negative 
 an exception, exemption, proviso, excuse, or qualifica- 
 tion (d). The facts which constitute the offence should 
 be set out; the defendant must be enabled to judge 
 whether the statement discloses an offence, and, if so, 
 whether it is one to which he can plead autrefois acquit, 
 
 (i) Per Huddleston, B., B. v. Hughes, 4 Q. B. D. at p. 633. 
 
 (c) B. v. McKenzie, (1892) 2 Q. B. 519; 61 L. J. M. 0. 181 ; 
 67 L. T. 201 ; 41 W. R. 144; 56 J. P. 712. 
 
 (d) S. J. Act, 1848, 8. 14 ; S. J. Act, 1879, s. 39, sub-s. (2).
 
 224 THE LAW OF GAMBLING. 
 
 or convict ; the statement must not be alternative, for 
 
 the defendant can only be called upon to show cause 
 
 One offence against one charge at a time (e). By sect. 10, Sum- 
 
 only. 
 
 mary Jurisdiction Act, 1848, it has been enacted that 
 the information must relate to one offence only. But 
 the difficulty arises in deciding what is one offence. In 
 the case of Milnes v. Bale (/), Brett, J., called attention 
 to the manner in which the offence could be proved : if 
 a succession of acts can be adduced in proof of the 
 offence, then those acts taken together constitute but 
 one offence. Thus, where the offence was keeping an 
 unlicensed dancing-house, proof might be obtained from 
 acts done on many days ; the offence is single (g). In 
 each case the nature of the offence and the actual 
 wording of the statute must be considered ; particular 
 care is needed in such Acts as the G-aming and Betting 
 House Acts, where the several sections contain in each 
 several offences which must be dissected. Where an 
 information contains more than one offence, it is defec- 
 tive in substance within sect. 1, Summary Jurisdiction 
 Act, 1848 ; the magistrates may and should put the 
 prosecutor to his election as to which single offence he 
 should proceed with (h). The magistrates must dispose 
 of one charge before they proceed to hear the evidence 
 of another ; for otherwise the evidence material to the 
 second charge might influence their determination of 
 
 (e) B. v. Marsh, 4 D. & E. 260 ; R. v. Daman, 1 Chitty, 147 ; 2 
 B. & Aid. 378 ; R. v. Trelawney, 1 T. E. 222 ; R. v. Hoard, 6 J. P. 
 445 ; Cotterill v. Lempriere, 24 Q. B. D. 634 ; 59 L. J. M. 0. 133 ; 
 62 L. T. 695. 
 
 (/) Milnes v. Bale, L. E. 10 C. P. 591 ; 44 L. J. C. P. 336. 
 
 (g) Garrett v. Messenger, L. E. 2 C. P. 583 ; 16 L. T. N. S. 
 414 ; 15 W. E. 864 ; 36 L. J. C. P. 337 ; 10 Cox, C. G. 498. 
 
 (h) Rodgers v. Richards, (1892) 1 Q. B. 555; 66 L. T. 261; 40 
 W. E. 331 ; 56 J. P. 281 ; 17 Cox, C. C. 475.
 
 CRIMINAL PKOCEDUKE. 225 
 
 the first charge (/). An information differs, then, essen- 
 tially from an indictment, in so far as it can only con- 
 tain one count; where several counts are required several 
 informations must be laid. 
 
 Knowledge of the fact that an information has been The summons 
 laid is communicated to the defendant by means of a 0] 
 summons, which states the offence contained in the in- 
 formation, and which requires his appearance as therein 
 specified. If the defendant fails to appear in answer 
 thereto, or if it be thought probable that the defendant, 
 on being served with the summons, will abscond, then a 
 warrant may be issued for his apprehension, after the 
 information has been reduced to writing, and been sub- 
 stantiated on oath or affirmation (&). 
 
 In the case of R. v. Hughes (/), it was argued that . v. Hughes. 
 the defendant, though he had sworn falsely, had not 
 done so in the course of a judicial inquiry. This con- p 1 i 
 tention raised the important question whether the magis- 
 trates who heard the inquiry had, under the circum- 
 stances, any jurisdiction to entertain the charge. The 
 circumstances were such that the process used for ob- 
 taining the appearance of the defendant to the original 
 charge were hopelessly irregular. The defendant 
 had been arrested on a warrant without any previous 
 information having been laid ; but he appeared and 
 answered to the charge. Voluntarily or involuntarily, 
 the defendant was before the magistrates, and in 
 his presence a charge was made. It was held by the 
 Court for Crown Cases Reserved (Kelly, C. B., diss.), 
 that the irregularity or regularity of the processes 
 
 (t) Hamilton v. Walker, (1892) 2 Q. B. 25 ; 61 L. J. M. 0. 
 134 ; 67 L. T. 200 ; 40 W. E. 476 ; 56 J. P. 583. 
 (ft) S. J. Act, 1848, s. 1. 
 
 (0 B. v. Hughes, 4 Q. B. D. 614 ; 48 L. J. M. C. 151. 
 G. Q
 
 226 THE LAW OF GAMBLING. 
 
 whereby the defendant had been caused to appear were 
 not essential to the jurisdiction of the justices; the 
 making of a charge in the presence of a defendant who 
 answers thereto is all that is necessary. In that case 
 the regular order was inverted, the information did not 
 precede the charge ; but a certain oral statement was at 
 once the charge and the information. In that case, the 
 defendant to the original charge did not protest on the 
 ground of the irregularity of the warrant. Hawkins, J., 
 said, " Had he known of the illegality of his arrest, he 
 might have demanded his release from it, and prayed 
 for an adjournment to a future day, to enable him to 
 prepare his defence. This, I think, would have been 
 the duty of the magistrates to grant (m) . A refusal to 
 do this, however, would not have destroyed their juris- 
 diction, though it might possibly have afforded good 
 ground for setting aside the conviction, on the ground 
 that they had not allowed the accused sufficient op- 
 together with portunity to answer the charge." In the later case 
 made. of Dixon v. Wells (n), the effect of a protest by a de- 
 
 fendant was considered. In the course of the case it 
 was stated that it had become a general practice for the 
 magistrate's clerk to hear complaints without any 
 written or other information, fill up a form of summons, 
 obtain the signature of any magistrate, and so cause 
 the man to be summoned, and perhaps exposed to a 
 heavy penalty, although the magistrate signing the 
 summons may not have ascertained whether there was 
 a prima facie case against the person summoned. 
 
 (m) Turner v. Postmaster-General, 5 B. & S. 756 ; 10 Cox, 0. 
 C. 15 ; 11 Jur. N. S. 137 ; 11 L. T. 369 ; 13 W. E. 89 ; 34 L. J. 
 M. C. 10; R. T. Shaw, 34 L. J. M. 0. 169; 10 Cox, C. C. 66; 
 L. & C. 579 ; 11 Jur. N. S. 415 ; 12 L. T. 470; 13 W. E. 692. 
 
 (n) Dixon v. Wells, 25 Q,. B. D. 249 ; 59 L. J. M. C. 116 ; 62 
 L. T. 812; 38 W. E. 606.
 
 CRIMINAL PROCEDURE. 
 
 Animadverting on this practice, Lord Coleridge, C. J., 
 said, " If it be, indeed, the practice to sign a summons 
 without hearing an information, and for one person 
 to hear the information and another to sign the sum- 
 mons, a practice more loose or likely to lead to injustice 
 ... I can hardly conceive. . . . The practice seems to 
 me to be in direct contravention of the provisions of 
 Jervis's Act, sect. 1." After stating the rule of JR. v. 
 Shaw, R. v. Hughes, the Chief Justice held that the 
 case then before the Court was distinguishable on two 
 grounds : " First, in all the cases to which our atten- 
 tion has been called there was no protest made by the 
 persons who appeared, and the Courts said, applying a 
 well-known rule of law expounded centuries ago, that 
 faults of procedure may generally be waived by the 
 person affected by them. They are mere irregularities, 
 and if one who may insist on them waives them, submits 
 to the judge, and takes his trial, it is afterwards too late 
 for him to question the jurisdiction which he might 
 have questioned at the time. In this case there was a 
 protest .... The appellant objected that there was no 
 summons and no information, and that the whole pro- 
 ceeding was irregular, and that the Court had no juris- 
 diction to try him, because he was not properly brought 
 there .... I do not, however, feel able to decide in 
 his favour on that point alone, for, although the fact of 
 his protest ought to be a complete answer to the assumed 
 jurisdiction, I cannot disguise from myself the fact that 
 from the language of many of the judges in R. v. 
 Hughes, although, perhaps, not necessary for the deci- 
 sion of that case and the judgments of Erie, C. J., 
 and Blackburn, J., in R. v. Shaw, they seem to assume 
 that if the two conditions precedent of the presence of 
 the accused and jurisdiction over the offence were ful- 
 
 Q2
 
 228 
 
 THE LAW OF GAMBLING. 
 
 Variance 
 between the 
 charge and 
 the evidence. 
 
 Blake v. 
 Beech. 
 
 filled, his protest would be of no avail. It would have 
 "been easy to say that a protest would have made a 
 difference ... It is an important question well worth 
 consideration in the Court of Appeal." 
 
 The evidence given in support of the summons may 
 disclose, not the offence charged, but another ; this 
 variance can be met by an adjournment (o). In the 
 case of R. v. Hughes (p), the defendant to the original 
 charge had been charged with an indictable misde- 
 meanour created by 24 & 25 Yict. c. 100, and evidence 
 had been taken in support of that charge ; but the 
 magistrates finally convicted summarily under a dif- 
 ferent statute, 34 & 35 Viet. c. 112, without any new 
 information or charge for the latter offence. " In 
 short," said Hawkins, J., "they convicted him of an 
 offence with which he had never been legally charged. 
 In this, I am of opinion, they were wrong ; and upon 
 this ground I am strongly inclined to think the convic- 
 tion may be quashed." In support of that view, the 
 learned judge refers to Martin v. Pridgeon (q), and Reg. 
 v. Brick-hall (r}. Under the circumstances of Reg. v. 
 Hughes, it was, however, unnecessary to decide the 
 point. In the earlier case of Blake v. Beech (s), the 
 only information was that on which the warrant was 
 issued under 8 & 9 Yict. c. 109, s. 3, namely, for keep- 
 ing a common gaming house. But the charge made 
 when the defendant was brought up was a charge which 
 
 (o) S. J. Act, 1848, ss. 1, 3, 9. 
 
 (p} See ante, p. 225. 
 
 (j) Martin v. Pridgeon, 1 E. & E. 778 ; 28 L. J. M. 0. 179 ; 
 5 Burr. N. S. 894 ; 7 W. E. 412; 8 Cox, 0. 0. 170; 33 L. T. 119. 
 
 (r) .R. v. SricJchaU, 33 L. J. M. C. 156; 10 Jur. N. S. 677; 
 10 L. T. 385. . 
 
 (s) Slake v. Seech, 1 Ex. Div. 320 ; 45 L. J. M. C. Ill ; 34 
 L. T. N. S. 764 ; 4 J. P. 678.
 
 CRIMINAL PEOCEDURE. 229 
 
 could not be made under 8 & 9 Viet. c. 109, and it was 
 made under the Betting House Act (16 & 17 Yict. 
 c. 119). It appeared, to Cleasby, B., and Grove, J., 
 that this made the proceedings irregular. " It would 
 be extremely inconvenient to enter in each case into the 
 consideration of the similarity or dissimilarity of dif- 
 ferent charges. It is better, especially in cases involving 
 an imprisonment for six months, to abide by the rule 
 established by the authorities, that the charge must be 
 comprised within the information, and not different 
 from it." Where, then, such a variance develops, the 
 magistrates should exercise their powers of adjourn- 
 ment, and a fresh information should be laid and pro- 
 cesses issued. 
 
 When the defendant has been held to be guilty of The convic- 
 the offence, there remains, after the adjudication, the 
 drawing up of the conviction or order. The original 
 design of this document was such as thereby to demon- 
 strate that all the proceedings required by justice had 
 been regularly observed, and that the sentence could be 
 legally supported by the evidence. The conviction is now 
 a mere memorandum of the judgment. But, as such, it 
 does not enjoy the protection given by sections 1, 3, and 
 9, of the Summary Jurisdiction Act, 1848, in respect of 
 objections to form and variances, to complaints, sum- 
 monses and warrants. Statutory forms are provided (t), 
 and must be followed with accuracy. The form of the Parts of. 
 conviction or order consists of three parts : first, the 
 recitals, which no longer contain the information, sum- 
 mons or warrant, and the evidence ; secondly, the state- 
 ment that the prisoner is guilty of the offence therein 
 set out, which part is called the conviction, and is thus 
 
 (<) Rules of 1886, Summary Jurisdiction Acts. See Appendix 
 of Forms.
 
 230 THE LAW OF GAMBLING. 
 
 designated by the same name as the whole document ; 
 thirdly, the adjudication, setting out the penalty, and 
 providing for the payment of costs by the defendant. 
 With regard to the second part the conviction in the 
 narrow sense, the offence must be stated with precise 
 accuracy, and the remarks that were made on the de- 
 scription of the offence in the information apply here. 
 The offence may be described in the words of the statute 
 whereby it is created (u] ; but it should be noticed that 
 section 14 of the Summary Jurisdiction Act, 1848, and 
 section 39 (2), Summary Jurisdiction Act, 1879, do not 
 remove the need which theretofore existed of negativing 
 an exception, exemption, proviso, excuse, or qualifica- 
 tion, &c., in the conviction. As the information must 
 only contain the allegation of one offence, so, as a 
 matter of practice, it would seem preferable to draw 
 separate convictions in respect of the several informa- 
 tions. There is, however, no statutory prohibition 
 against including in one conviction two or more con- 
 victions and their attendant adjudications. If the de- 
 scription of the offence in the adjudication be insufficient, 
 or otherwise wrong in point of form, advantage may be 
 taken of the power to amend given by Baines' Act (12 
 & 13 Yict. c. 45, s. 7). 
 
 Autrefois The defendant, when called on to answer to the 
 
 acquit* charge, may plead guilty or not guilty, or that he has 
 been previously convicted or acquitted of the offence 
 charged against him. He would prove the previous 
 conviction by production of the copy of the conviction, 
 or, in the instance of an acquittal, by the production of 
 the magistrates' certificate, granted under section 14, 
 Summary Jurisdiction Act, 1848, or by other evidence. 
 
 (w) S. J. Act, 1879, B. 39 (1).
 
 CRIMINAL PROCEDUEE. 231 
 
 The acquittal, to avail, must have teen on the merits. 
 It seems that a conviction, though followed by no 
 punishment other than the giving of a security to be of 
 good behaviour, as may be inflicted by the magistrates 
 under their important discretionary powers (#), would 
 support the plea ; otherwise it would follow that a 
 person whose offence, at the most, deserved nothing 
 beyond a nominal punishment, would be in a worse 
 position than one whose offence had been visited by a 
 substantial punishment, which he had suffered (y). 
 Strictly, a plea of autrefois convict or acquit can only 
 be supported where the form as well as the substance of 
 the second charge is identical with that of the first. 
 But the maxim, Nemo delet bis puniri pro uno delicto, 
 cannot be avoided by merely changing the form on the 
 second charge. The common law rule, as stated by 
 Cockburn, C. J., in Reg. v. Elrington (z), is, "A series 
 of charges shall not be preferred, and, whether a party 
 accused of a minor offence is acquitted or convicted, he 
 shall not be charged again on the same facts in a more 
 aggravated form ; " or, as Blackburn, J., enunciated it, in 
 the case of Wemyss v. Hopkins (a), "whenever a person 
 has been convicted and punished for an offence by a 
 court of competent jurisdiction, transit in rem judicatum 
 that is, the conviction shall be a bar to all further 
 proceedings for the same offence, and he shall not be 
 punished again for the same matter; otherwise there 
 
 (x) S. J. Act, 1879, s. 16, sub-ss. 1, 2. 
 
 (y) Per Hawkins, J., Reg. v. Miles, 24 Q. B. D. 423; 59 
 L. J. M. C. 56 ; 62 L. T. 572 ; 38 W. E. 334 ; 54 J. P. 594 ; 17 
 Oox, C. C. 9. 
 
 (z) B. v. Elrington, 1 B. & S. 688 ; 31 L. J. M. C. 14 ; 8 Jur. 
 N. S. 97 ; 5 L. T. 284 ; 10 W. E. 13 ; 9 Cox, 0. C. 86. 
 
 (a) Wemyss v. Hopkins, L. E. 10 U. B. 378; 44 L. J. M. C. 101 ; 
 33 L. T. 9 ; 23 W. E. 691.
 
 232 THE LAW OF GAMBLING. 
 
 might be two different punishments for the same 
 offence." The difficulty lies in the application of the 
 rule to the particular facts of the cases which arise. It 
 is well established that a former acquittal or conviction 
 may be pleaded in bar to a subsequent prosecution for 
 the same offence, whether with or without circumstances 
 of aggravation, and whether such circumstances of ag- 
 gravation consist of the offence having been committed 
 with malicious or wicked intent, or by reason that the 
 offence was followed by serious consequences. It will 
 be found, on examination of the Betting House Acts 
 (16 & 17 Yict. c. 119), that the different offences thereby 
 created have not been created with a due regard to this 
 common law principle. 
 
 Appeals. A right of appeal to a Court of Quarter Sessions 
 
 from the Court of Summary Jurisdiction is given either 
 by the Act which creates the offence, or in other cases, 
 where the right is not so conferred, it will be found to 
 arise under section 19 of the Summary Jurisdiction 
 Act, 1879. This section in terms only applies where 
 the defendant has not pleaded guilty, and is not other- 
 wise authorized to appeal. Whencesoever the right 
 may come, the procedure regulating its exercise is 
 contained in the sub-sections of section 31 of the 
 Summary Jurisdiction Act, 1879 (). It will be noticed 
 that by sub- section 5 of that section, the Court of 
 Appeal may confirm, reverse, or modify the decision. 
 Hence, the Court of Appeal, exercising its jurisdiction, 
 
 (6) The words "by this Act or by any future Act" in sect. 31, 
 S. J. Act, 1879, are repealed by the S. J. Act, 1884, -vdiereunder, 
 by sect. 6, the provisions of sect. 31, S. J. Act, 1879, are made 
 applicable to appeals authorized by any Act prior to the S. J. 
 Act, 1879. See Beg. v. Glamorgan JJ., (1892) 1 Q. B. 620 ; 61 
 L. J. M. C. 169 ; 66 L. T. 444 ; 40 W. E. 436 ; 56 J. P. 437,
 
 CEIMINAL PROCEDURE. 233 
 
 may now be asked to modify the adjudication part of 
 the conviction without altering the conviction, using 
 the word in its narrower sense. An appeal against a 
 sentence will lie where the right to appeal arises other- 
 wise than under section 19, whether the defendant does or 
 does not plead guilty ; but where the only right of appeal 
 is that which arises under that section, the defendant 
 would not thereunder be able to appeal if he had 
 pleaded guilty. In the case of Reg. v. The Justices of 
 Surrey, and ell(c), the right of appeal arose under the 
 statute 12 & 13 Yict. c. 92; the defendant either 
 pleaded guilty or was found guilty, but on the appeal 
 he did not dispute his guilt, and asked the Court of 
 Quarter Sessions merely to modify the sentence. "When 
 the appeal was called on the respondents did not appear, 
 hence the conviction was quashed. A writ of certiorari 
 was refused, on the ground that the appeal was in order, 
 and that under the circumstances the Court of Quarter 
 Sessions took the proper course in quashing the con- 
 viction. 
 
 An appeal upon a point of law can be obtained from Special cases, 
 the Court of Summary Jurisdiction, either by means of 
 a case stated under 20 & 21 Yict. c. 43, or by means of 
 a special case under the Summary Jurisdiction Act, 
 1879, s. 3 (rf). 
 
 An illustration of the application of the special case 
 is afforded by the case of Downcs v. Johnson (e), com- 
 monly known as the Albert Club case. The magistrate 
 found certain facts, namely, that a house was in the 
 
 (c) R. v. Justices of Surrey, and Sell, (1892) 2 Q. B. 719; 61 
 L. J. M. C. 200; 66 L. T. 578. 
 
 (d) This subject is fully treated in Oke's Magisterial Synopsis, 
 14th ed. p. 129 et seq., also in Trotter's Appeals from Courts of 
 Summary Jurisdiction. 
 
 (e) Downed v. Johnson, (1895) 2 Q. B. 203; 64 L. J. M. 0. 238.
 
 234 THE LAW OF GAMBLING. 
 
 occupation of the Albert Club, Limited, of which there 
 were some 700 and more shareholders, who used it for 
 the purpose (inter alia) of betting inter se on horse 
 races some of the members usually laid odds against, 
 and others usually backed, the horses; but frequently 
 the positions were reversed. But it was not proved that 
 members made bets with non-members on the club 
 premises. On such facts the learned magistrate decided 
 that the defendant had not been brought within the 
 words of the Act, "using a place for the purpose of 
 betting with persons resorting thereto." Hence the 
 question was asked in special case, Whether on such 
 facts the magistrate came to a correct determination and 
 decision in point of law. 
 
 It need hardly be said that a special case is not the 
 means to review a decision of a question of fact. In 
 the recent Newmarket case (/), in which the stewards of 
 the Jockey Club were summoned for that they, being 
 the occupiers of a certain place, knowingly and wilfully 
 permitted the same to be used for an illegal purpose, 
 the magistrates decided that the evidence did not 
 satisfy them that the defendants knowingly and wil- 
 fully permitted the enclosures to be kept or used for the 
 purposes of betting within the meaning of the Act of 
 1853. The magistrates were asked to state a case, but 
 refused. After some delay a rule was obtained for an 
 order nisi calling upon the justices of Cambridgeshire 
 and the stewards of the Jockey Club to show cause 
 why the justices should not state a case for the opinion 
 of the Court upon the summons. The magistrates, in 
 showing cause against the order nisi in their affidavits, 
 stated that they had decided a question of fact, and of 
 
 (/) R. v. Godfrey and others, reported in the newspapers, 
 August 1st, 1895.
 
 CRIMINAL PEOCEDURE. 235 
 
 fact only, namely, that there was no sufficient evidence 
 to prove what was charged against the defendants. 
 The Court held that they could not go behind that 
 statement and compel the magistrates to state a case. 
 Wright, J., pointed out that the proper course for the 
 applicant to have followed, would have been to have 
 applied for an order requiring the bench to hear and 
 determine the matter, and if on such an application it 
 had been shown that their decision on the facts was 
 contrary to their oath to decide without favour or 
 affection, or in any way corrupt or perverse, or made 
 on personal grounds, they might have been compelled 
 to hear the case and decide it as if it had not been 
 heard before. Or, again, in such circumstances as indi- 
 cated, leave might have been given to file a criminal 
 information against them. The learned judge was 
 pointing out the way in which, if there was misconduct, 
 it could be dealt with; he, of course, expressed no 
 opinion on the success or failure of any such application 
 in that case. 
 
 The reader is referred to Short and Mellor's Practice 
 of the Crown Office for the practice relating to writs of 
 mandamus or certiorari. 
 
 Under section 17, sub-sections (1) and (2) of the Sum- Right to be 
 mary Jurisdiction Act, 1879, the defendant, when jjjJL ya 
 charged before a court of summary jurisdiction with 
 an offence which may render him liable to be im- 
 prisoned for a term exceeding three months, may, on 
 appearing before the Court, and before the charge is 
 gone into, but not afterwards, claim to be tried by 
 a jury. Thereupon he will be dealt with as if charged 
 with an indictable offence. The accused must be in- 
 formed of this right in time to exercise it. 
 
 If the accused elects to exercise this right, the posi- Procedure 
 
 when the
 
 236 THE LAW OF GAMBLING. 
 
 right is tion of matters thereafter becomes the same as if the 
 
 defendant had been charged with an indictable offence, 
 and not with an offence punishable on summary con- 
 viction. The procedure is different. The justices have 
 to satisfy themselves that the evidence discloses a primd 
 facie case of the commission by the accused of an indict- 
 
 11 & 12 Viet, able offence. Under section 25 of the statute 11 & 12 
 Yict. c. 42, it is enacted, " that when all the evidence 
 offered upon the part of the prosecution against the 
 accused party shall have been heard, if the justice or 
 justices of the peace then present shall be of opinion 
 that it is not sufficient to put such accused party upon 
 his trial for any indictable offence, such justice or justices 
 shall forthwith order such accused party, if in custody, 
 to be discharged as to the information then under 
 inquiry ; but if, in the opinion of such justice or justices, 
 such evidence is sufficient to put the accused party upon 
 his trial for an indictable offence, or if the evidence 
 given raise a strong or probable presumption of guilt of 
 such accused party," then the accused should be com- 
 mitted for trial with or without the benefit of the exer- 
 cise of the powers of admitting to bail contained in 
 section 23. Therefore, in cases in which the magistrates 
 send a case for trial before a jury, the question is, 
 whether the evidence given on the hearing of the sum- 
 mons covers the charges in the indictment. Hence, 
 also, applications are commonly made to add fresh 
 counts to indictments founded on the evidence in the 
 depositions. In fact, where the provisions of the Vexa- 
 tious Indictments Act (22 & 23 Yict. c. 17) do not 
 apply, a bill may be presented to a grand jury without 
 any preliminary inquiry. But the last-mentioned 
 statute applies (inter alia) to the misdemeanour of 
 keeping a gambling house ; and so in respect of that
 
 CRIMINAL PROCEDURE. 237 
 
 offence no bill of indictment can be presented to or 
 found by any grand jury, unless the prosecutor or other 
 person presenting such indictment has been bound by 
 recognizances to prosecute or give evidence against the 
 person accused of such offence, or unless the person 
 accused has been committed to, or detained in, custody, 
 or has been bound by recognizance to appear to answer 
 to an indictment to be preferred against him for such 
 offence. By the second section of the same Act, if the 
 justices at the hearing of the information shall refuse 
 to commit or to bail the person charged with such offence 
 to be tried for the same, then the prosecutor may re- 
 quire the justices to take the prosecutor's recognizances 
 to prosecute such charge. By a later Act, being an 30 & 31 Viet. 
 " Act to remove some Defects in the Administration of ' ' 8< ' 
 the Criminal Law," it was provided that the Vexatious 
 Indictments Act should not preclude the presentation or 
 finding of any bill or indictment containing counts for 
 any of the offences mentioned in 22 & 23 Yict. c. 17, 
 " if such counts be such as may now be lawfully joined 
 with the rest of such bill of indictment, and if the same 
 count or counts be founded (in the opinion of the Court 
 in or before which the same bill of indictment be pre- 
 ferred) upon the facts or evidence disclosed in any 
 examination or deposition taken before a justice of the 
 peace, in the presence of the person accused or proposed 
 to be accused by such bill of indictment and transmitted 
 or delivered to such Court in due course of law." .... 
 In the case of Reg. v. Brown (<?), an information was Reg. v. 
 laid, and a summons obtained against the defendant for 
 using a house for betting ; subsequently he was charged 
 . . . . " that he, being the occupier of a certain house, 
 
 (g) R. v. Brown, (1895) 1 Q. B. 119 ; 64 L. J. M. 0. 1.
 
 THE LAW OF GAMBLING. 
 
 unlawfully did use the house for the purpose of betting 
 with persons resorting thereto upon certain events and 
 contingencies of and relating to certain horse races, con- 
 trary to the statute (^)." The defendant claimed to be 
 tried by a jury. The indictment contained four counts. 
 Counts in The first count charged him, as the occupier of a certain 
 house and rooms therein, with unlawfully opening, 
 keeping, and using the said rooms in the said house for 
 the purpose of betting with persons resorting thereto. 
 The second count charged him, as such occupier, with 
 opening, keeping, and using the rooms for the purpose 
 of money being received by him and on his behalf, as 
 and for the consideration of an undertaking, promise, 
 and agreement to pay thereafter money on the contin- 
 gency of and relating to horse races. The third and 
 fourth counts merely varied the first and second by 
 charging the defendant, not as the occupier of the house 
 and rooms, but as being a person using the same for 
 the purposes aforesaid respectively. The evidence given 
 before the magistrates, and contained in the depositions, 
 amply covered the whole of the counts. The Court of 
 Crown Cases Eeserved unanimously held that the indict- 
 ment was perfectly legal. 
 
 (A) The summons should have stopped in the description of 
 the offence at the word " thereto."
 
 ( 239 ) 
 
 CHAPTER XII. 
 
 OFFENCES RELATING TO GAMING HOUSES. 
 
 Gaming Houses. 
 
 IN Chapter II., it was shown that a common gaming Common 
 house is a common nuisance, and that the keeper thereof house! g 
 is indictable for such keeping. Common gaming houses 
 were and are obnoxious to the law, as affording tempta- 
 tions to idleness, and as encouraging excessive play and 
 its attendant evils ; not unfrequently such houses draw 
 together numbers of disorderly persons (a). It will be 
 remembered that this indictable offence existed side by 
 side with the legality of any game at common law ; the 
 playing of any game was not unlawful, but it was 
 criminal to keep a house whereto many persons might 
 resort, with or without disorder, for the purpose of 
 gaming. 
 
 The indictment may still be preferred, though, as a Indictment 
 matter of practice, the summary offences next hereafter 
 to be mentioned have largely superseded its use. The 
 indictment need not contain a statement of the par- 
 ticular facts which support the allegation of keeping 
 the common gaming house ; on the authorities, it is 
 sufficient that the description be general. In jR. v. 
 Dixon (b), a husband and wife were indicted that they 
 
 (a) See ante, p. 41, and the authorities there cited. 
 
 (b) 2 Geo. I. ; E. v. Dixon, 10 Mod. 336 (case 176).
 
 240 THE LAW OP GAMBLING. 
 
 and each of them on a certain day and on other days 
 did unlawfully keep a common gaming house, and in 
 JR. v. Mason (c), Grose, J., was of opinion that a general 
 X. v. Soffier. description would suffice. In the case of R. v. Eogier (d), 
 the indictment particularized ; for, after charging that 
 the defendants unlawfully did keep and maintain a 
 certain common gaming house, it continued : and in the 
 said common gaming house, for lucre and gain, unlaw- 
 fully and wilfully did cause and procure divers idle and 
 evil-disposed persons to frequent and come to play 
 together at a certain unlawful game at cards, called 
 rouge et noir ; and in the said common gaming house 
 unlawfully and wilfully did permit and suffer the said 
 idle and evil-disposed persons to be and remain playing 
 and gaming in the said unlawful game called rouge et 
 noir for divers large and excessive sums of money, to 
 the common nuisance of, &c. Holroyd, J., was of 
 opinion that it was sufficient merely to have alleged 
 that the defendants kept a common gaming house. On 
 a motion in arrest of judgment, it was argued on behalf 
 of the defendants that it was not a nuisance, because 
 the indictment did not show that any inconvenience 
 had accrued to the neighbourhood; and, further, that 
 gaming was not illegal at common law, and that no 
 statute had made rouge et noir an illegal game. It was 
 held, that the indictment disclosed an offence at common 
 law. Abbott, 0. J., pointed out that, if any confirma- 
 tion of the authority of Hawkins were wanted, it was 
 supplied by the enactments of the legislature. The 25 
 Greo. II. c. 36, s. 5 (e), after reciting that, in order to 
 
 (c) B. v. Mason, 1 Leach's 0. 0. 487. 
 
 (d) R. v. fiogier, 1 B. & 0. 272 ; 2 D. & E. 431. 
 
 (e) Sects. 5 and 8 of this statute are unrepealed and unaltered.
 
 OFFENCES RELATING TO GAMING HOUSES. 241 
 
 encourage prosecutions against persons keeping bawdy 
 houses, gaming houses, or other disorderly houses, 
 enacts, that if any two inhabitants of any parish give 
 notice in writing to a constable of any person keeping a 
 bawdy house, gaming house, or any other disorderly 
 house, the constable shall go with such inhabitants to a 
 justice of the peace, and shall, upon such inhabitants 
 making oath that they believe the contents of the notice 
 to be true, enter into a recognizance to prosecute such 
 offence, and the constable is to be allowed the expenses 
 of the prosecution, and each of the inhabitants is to 
 receive 10/. By section 8, the difficulty of proving who 
 is the real owner or keeper is overcome by the provision 
 " that any person who shall appear, act, or behave him- 
 self as master, or as the person having the care and 
 management of any such house, shall be deemed to be 
 the keeper thereof, and shall be liable to prosecution as 
 such, although he be not the real owner." The Chief 
 Justice then refers to the provisions of the 9 Anne, 
 c. 14, s. 2, whereunder the playing at any game is un- 
 lawful, if more than 101. be lost. He subsequently 
 adds : " The playing for large and excessive sums of 
 money would of itself make any game unlawful ; and, 
 if so, there can be no doubt that this is an offence at 
 common law." 
 
 The absence of an allegation in the indictment that 
 the neighbours had suffered inconvenience is immaterial. 
 Gaming houses are a species of disorderly houses, and, to 
 support a conviction for keeping a disorderly house, it is 
 unnecessary to prove that there was any external mani- 
 festation of the internal pursuits (/). In Chapter II. 
 
 The Stat. Law Rev. Act, 1867, and 38 & 39 Viet. c. 21, s. 1, do 
 not touch these sections. 
 (/) Aeg. v. Mice and Wilton, L. B. 1 C. 0. K. 21 ; 35 L. J. M. 
 
 O. R
 
 242 
 
 THE LAW OF GAMBLING. 
 
 The offences. 
 
 Keeping a 
 bouse of, &c. 
 
 it has been submitted that gaming playing at a 
 game for money (g] does not at common law become 
 unlawful because the stakes are excessive. But, whilst 
 at common law all gaming was lawful, provided there 
 was no foul play, yet a common gaming house, of which 
 the indicia have been stated above, was a well-recognized 
 nuisance. 
 
 The Statute 33 Hen. VIII. c. 9. 
 
 This Act has the merit that, by section 17, all previous 
 statutes made against unlawful games were repealed. 
 The statute has been followed by that of 8 & 9 Viet, 
 c. 109, and 17 & 18 Yict. c. 38 ; these three statutes 
 create specific offences, and confer executive powers, and 
 make procedural provisions. 
 
 In Chapter III., a general account has been given 
 of the Act 33 Hen. VIII. c. 9, but here only such 
 portions as are unrepealed will be considered. 
 The offences created under this Act are - 
 (A.) By section 1 1 That no person by himself, factor, 
 deputy, servant, or other person shall for his or their 
 gain, lucre, or living, keep, have, hold, occupy, exercise, 
 or maintain any common house, alley, or place, of dicing- 
 table, carding, or any other manner of game prohibited 
 by any statute heretofore mentioned, or any unlawful 
 new game now invented or made, or any other new 
 unlawful game hereafter to be invented, found, had, or 
 made, upon pain to forfeit and pay for every day keep- 
 ing, having, or maintaining, or suffering any such game 
 to be had, kept, or maintained, executed, or played 
 within any such house, garden, alley, or other place 
 contrary to the form and effect of this statute, forty 
 shillings. 
 
 C. 93 ; 12 Jur. N. S. 126 ; 13 L. T. 382; 14 W. B. 56; 10 Cox, 
 C. C. 155. 
 
 (g) R. v. Ashton, 1 E. & B. 286; 22 L. J. M. 0. 1; 17 Jur. 501.
 
 OFFENCES RELATING TO GAMING HOUSES. 243 
 
 (B.) By section 12 And also every person using Using such 
 and haunting any of the said houses and plays and 
 there playing, to forfeit every time so doing six shillings 
 and eightpence. 
 
 (C.) By section 16 That no manner of artificer or Certain 
 craftsman of any handicraft or occupation, husbandman, ^ 8 ia 
 
 apprentice, labourer, servant at husbandry, journeyman g at un j aw - 
 or servant of artificer, mariners, fishermen, watermen, 
 or any serving man shall play at dice, cards, or any 
 other unlawful game under the pain of twenty shillings 
 to be forfeited for every time. 
 
 In order to render the Act effectual for the suppres- 
 sion of the offences a power of search was given by sec- 
 tion 14 ; and the justices were subsequently authorized 
 to bind with recognizances those found on the premises 
 (2 Geo. II. c. 28, s. 9) . This power, having become obso- 
 lete by reason of the larger powers of the later statutes, 
 was repealed by the Statute Law Eevision Act, 1863 (h). 
 
 This statute, by creating the offence of keeping for 
 gain a house of playing unlawful games, did not destroy 
 the common law offence of keeping a common gaming 
 house. That such had been its result was unsuccess- 
 fully contended in R. v. Dixon (Y). 
 
 The Statute 8 Sf 9 Viet. c. 109. 
 
 In Chapter VII. , it was necessary to cite the preamble 
 and the earlier sections of the statute 8 & 9 Viet. c. 109, 
 in order to exhibit the policy of the Act as leading up 
 to the detailed consideration of the 18th section. A 
 reference back will show that this statute was of the 
 
 (h) Hawkins, J., in Jenks v. Turpin, 13 Q,. B. D. 505; 53 L, 
 J. M. C. 161 ; 50 L. T. 808 ; 49 J. P. 20 ; 15 Cox, C. C. 486 ; 
 says that sect. 14 does not seem to have been repealed. 
 
 (t) R. v. Dixon, 10 Mod. 336 (case 176). 
 R2
 
 244 THE LAW OF GAMBLING. 
 
 highest importance with regard to the policy of the 
 law in respect of games of skill, removing the impe- 
 diments imposed on the exercise thereof by the statute 
 33 Hen. VIII. c. 109. 
 Offences. The offences described in this statute are 
 
 (D.) By section 4 That the owner or keeper of any 
 common gaming house, and every person having the 
 care or management thereof, and also every banker, 
 croupier, and other person who shall act in any manner 
 in conducting the business of any common gaming 
 house, shall, on summary conviction, in addition to any 
 penalty or punishment to which he may be subject under 
 33 Hen. VIII. c. 9, be liable to forfeit and pay a 
 penalty not exceeding 100/., or may be imprisoned with 
 or without hard labour for any period of time not exceed- 
 ing six calendar months. 
 
 This is the only offence relating to gaming houses 
 described in the Act. Substantially this offence is 
 identical with that of section 11 of 33 Hen. VIII. c. 9. 
 In terminology, the slight difference is, that the earlier 
 statute speaks of the keeping of a house of playing 
 unlawful games, and the later one substitutes the term, 
 the keeping of a common gaming house. It is worthy 
 of notice that the 4th section contemplates dual pun- 
 ishment for the same acts, namely, the penalties and 
 punishments of the earlier statute plus the penalties 
 and punishments of the later. But the same section, 
 possibly with reference to the contention which was 
 raised in R. v. Dixon (k), enacts, that nothing therein 
 contained should prevent any proceeding by indictment 
 against the owner or keeper or other person having the 
 care or management of a common gaming house; 
 
 (&) R. v. Dixon, 10 Mod. 336 (case 176).
 
 OFFENCES EELATING TO GAMING HOUSES. 245 
 
 though it provides that no person who shall have been 
 summarily convicted should be liable to be indicted for 
 the same offence. 
 
 This Act does not directly impose any penalty on 
 persons haunting and playing in common gaming 
 houses ; if it does so at all, it must be indirectly, by 
 incorporating the offence contained in section 12 of the 
 earlier statute and the powers of section 14, as extended 
 by 2 Geo. II. c. 28, s. 9. 
 
 The practical weakness of this Act lay in its defective The weakness 
 executive powers. It will be remembered that it had 
 repealed the duty imposed, by the earlier statute, on 
 justices to make search. But it is provided by section 3 Outside the 
 that, outside the metropolitan police district, in every ^lice^L 1 -^ 
 case in which the justices of peace in every shire, and ^mart 6 * 
 mayors, sheriffs, bailiffs, and other head officers within sect - 3 - 
 every city, town, and borough within the realm now 
 had power to enter into any house, room, or place where 
 unlawful games should be suspected to be holden, it 
 should be lawful for any justice of the peace, upon 
 complaint made before him on oath that there was 
 reason to suspect any house, room, or place to be kept 
 or used as a common gaming house, to give authority, 
 by special warrant under his hand, when in his discre- 
 tion he should think fit, to any constable to enter, with 
 such assistance as might be found necessary, into such 
 house, room, or place, in like manner as might have 
 been done by such justices, &c., and, if necessary, to 
 use force for making such entry, whether by breaking 
 open doors or otherwise, and to arrest, search, and bring 
 before a justice of the peace, all such persons found 
 therein as might have been arrested therein by such 
 justice of the peace had he been personally present ; and 
 all such persons should be dealt with according to law as if 
 they had been arrested in such house, room, or place by the
 
 246 
 
 THE LAW OF GAMBLING. 
 
 Within the 
 
 justice before whom they should be so brought. The form 
 of the search warrant is given in the Appendix to the 
 Act (&). 
 
 Prior to the passing of the 8 & 9 Yict. c. 109, there 
 was power within the metropolitan police district for 
 any superintendent of the metropolitan police to make 
 a written report to the commissioners of police that 
 there were good grounds for believing that a house or 
 room within the district was kept or used as a gaming 
 house, and on two or more householders dwelling within 
 the district, and not belonging to the police, making 
 oath in writing, to be taken and subscribed before a 
 magistrate, and annexed to the report, then the commis- 
 sioners might make an order in writing, whereby the 
 superintendent was authorized to enter such house, with 
 force if necessary, and to take into custody all persons 
 found therein, and to seize and destroy all instruments 
 of gaming, and to seize all moneys and securities. This 
 power was given by the 2 & 3 Yict. c. 47, s. 48. The 
 section also provided (offence E.) that the owner or 
 keeper, or other person having the care or management 
 of the gaming house, and also every banker, croupier, 
 and other person acting in any manner in conducting 
 the said gaming house, should be liable to a penalty of 
 100/., or to not more than six calendar months' impri- 
 sonment, with or without hard labour; and, further, 
 that every person found in the premises without lawful 
 excuse should be liable to a penalty of not more than 57. 
 However, the process of obtaining a search warrant 
 
 j within the metropolitan police district was simplified by 
 
 of 8 & 9 Viet, the 6th section of the statute 8 & 9 Yict. c. 109, where- 
 
 c. 109. 
 
 under it was provided that if any superintendent be- 
 longing to the metropolitan police force should report 
 
 Offence 
 under 2 & 3 
 Viet. c. 47, 
 s. 48. 
 
 Search war- 
 
 (k) See Appendix, Form No. II.
 
 OFFENCES EELATING TO GAMING HOUSES. 247 
 
 in writing to the commissioners of the police that there 
 are good grounds for believing, and that he does believe, 
 that a house, &c., within the district is kept as a common 
 gaming house, then either of the commissioners may, in 
 writing, authorize the superintendent to enter, with 
 force if necessary, to take into custody all persons found 
 therein, and to seize all instruments of gaming and all 
 moneys and securities for money found therein. Thus 
 the procedure is more simple than that under the Metro- 
 politan Police Act (2 & 3 Yict. c. 47, s. 48). Further, 
 by section 7, on making such entry, a search of the 
 whole house is authorized, and of all persons found 
 therein. 
 
 The statute 8 & 9 Yict. c. 109, does not define a Evidence 
 common gaming house. But section 2, after reciting ^conviction 
 that doubts had arisen whether certain houses, reputed 
 to be opened for the use of subscribers only, or not open 
 to all persons desirous of using the same, are to be 
 deemed common gaming houses (/), states that it shall 
 suffice for a conviction in default of other evidence; 
 namely, that it shall be sufficient to prove that such 
 house or place is used for playing at any unlawful game, 
 and that a bank is kept there by one or more of the 
 players exclusively of the others, or that the chances of 
 any game played therein are not alike favourable to 
 all the players, including amongst the players the 
 banker or other person by whom the game is managed, 
 or against whom the other players stake, play, or bet, 
 and provides that every such house shall be deemed a 
 common gaming house such as is contrary to law, and for- 
 bidden by the statute of 33 Hen. VIII. and by all other 
 Acts containing provisions against unlawful games or 
 
 (?) Crockfordv. Lord Maidstone, 8 L. T. 217 ; Oliphant'a Law 
 of Horses, p. 281.
 
 248 
 
 THE LAW OF GAMBLING. 
 
 What is not 
 required. 
 
 Effect of 
 finding in- 
 struments of 
 gaming. 
 
 Obtaining 
 witnesses. 
 
 Appeal. 
 
 Distress. 
 Tender of 
 amends. 
 
 gaming houses. And section 5 provides that it shall 
 not be necessary, in support of any information for 
 gaming in, or suffering any games or gaming in, or for 
 keeping or using, or being concerned in the manage- 
 ment or conduct of a common gaming house, to prove 
 that any person found playing at any game was playing 
 for money, wager, or stake. To the same effect is sec- 
 tion 49 of the Metropolitan Police Act (2 & 3 Yict. 
 o. 47). By section 8 of the statute it is enacted that 
 where any cards, dice, balls, counters, tables, or other in- 
 struments of gaming used in playing any unlawful game, 
 shall be found in any house, &c., suspected and entered, 
 or about the person of any of those found therein, it 
 shall be evidence, until the contrary be made to appear, 
 that such house, &c., is used as a common gaming house, 
 and that the persons found in the room where such 
 instruments of gaming shall have been found were 
 playing therein, although no play was actually going 
 on in the presence of the officer entering or of those 
 with him. The destruction of all such instruments of 
 gaming may be ordered forthwith. 
 
 Persons concerned in the unlawful gaming may, with 
 a view to the conviction of keepers of gaming houses, be 
 examined as witnesses, and, under section 9, may obtain 
 a certificate, which indemnifies them against their acts 
 in respect of such unlawful gaming. 
 
 A person summarily convicted under this Act is 
 empowered to appeal against such conviction, and the 
 right must be exercised in accordance with the general 
 procedure directed by the Summary Jurisdiction Acts, 
 as explained in Chapter XI. 
 
 By the 21st and 22nd sections provisions are made 
 with a view to relieving against the liabilities that 
 might be incurred through making a distress upon a
 
 OFFENCES RELATING TO GAMING HOUSES. 249 
 
 process not in proper form ; the 23rd section provides 
 for the limitation of actions. 
 
 By virtue of the 25th section no information, con- Conviction, 
 viction, or other proceeding, before or by any justice 
 
 under this Act can be quashed or set aside, or adjudged informality, 
 void or insufficient for want of form, or be removed by 
 certiorari into her Majesty's Court of Queen's Bench. 
 
 The Statute 17 $ 18 Viet. c. 38. 
 An Act for the Suppression of Gaming Houses. 
 
 Experience proved that the last-mentioned and the Occasion fo 
 other Acts were inadequate for the suppression of 
 gaming houses, because the keepers thereof obstructed 
 the entrance of the police, and whilst the police were 
 using force the instruments of gaming were removed 
 or destroyed, with the result that sufficient evidence 
 could not be obtained. Hence the offences (F.) and (Gr.) 
 were created : 
 
 Offence (F.), by section 1. Any person who shall wil- Offences 
 fully prevent any constable duly authorized to enter 
 any suspected house from entering, and any person 
 who by any bolt, bar, chain, or other contrivance, shall 
 secure any external or internal door of or means of 
 access to any house, &c., or shall use any means or 
 contrivance whatsoever for the purpose of preventing 
 or obstructing such entry, may for every such offence, 
 on summary conviction, be fined 100/., or be imprisoned 
 with or without hard labour for not more than six 
 calendar months. 
 
 Offence (G.), by section 3. If any person found in any 
 house, &c., entered as aforesaid, upon being arrested or 
 upon being brought before any justices, on being 
 required to give his name and address, shall refuse or
 
 250 
 
 THE LAW OF GAMBLING. 
 
 Liability of : 
 i. owner, &c. 
 ii. owner, &c. 
 wilfully per- 
 mitting ; 
 iii. any 
 manasrer or 
 assistant ; 
 iv. person 
 lending 1 
 money. 
 
 Evidence. 
 Effect of 
 obstructions, 
 alarms, &c. 
 
 neglect to give the same, or shall give any false name 
 and address, he may, on summary conviction be fined 
 not more than 50/. or be imprisoned for not more than 
 one month. And further, to increase the stringency of 
 the law by inflicting penalties on some people who had 
 previously escaped, higher penalties and pains were 
 attached than had theretofore been applied to the 
 summary offences. The offence (H.) in section 4 is not 
 defined in terms of a common gaming house as was 
 offence (D.), but substitutes therefor the term ''for the 
 purpose of unlawful gaming" The offence is 
 
 Any person, being the owner or occupier, or having 
 the use of any house, room, or place, who shall open 
 the same for the purpose of unlawful gaming being 
 carried on therein, and any person who 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, opened, kept, or used for the purposes 
 aforesaid, and any person who shall advance or furnish 
 money for the purpose of gaming with persons fre- 
 quenting such house, room, or place, may, on summary 
 conviction, be fined not more than 500/. or be imprisoned 
 with or without hard labour for not longer than twelve 
 calendar months. 
 
 The provisions of the statute 8 & 9 Viet. c. 109, were 
 supplemented as to the evidence required to support a 
 conviction, for, by section 2, the wilful obstruction of an 
 officer in entering, the barring of the means of access, 
 or facilities for giving alarm in case of such entry, or 
 any means or contrivance for concealing, removing, or 
 destroying any instruments of gaming, are deemed to
 
 OFFENCES RELATING TO GAMING HOUSES. 251 
 
 be evidence until the contrary be shown that the house, 
 &c., is used as a common gaming house within the 
 meaning of this Act, and of former Acts relating to 
 gaming, and that the persons found therein were un- 
 lawfully playing. 
 
 It will be remembered that under the statute 8 & 9 Power to 
 Yict. c. 109, s. 9, the persons concerned in the unlawful sons to give 
 gaming might, with the benefit of an indemnity, give evi ' 
 evidence. But under the present Act (section 5) any 
 persons arrested on entry may be compelled to take oath 
 and give evidence as if subpoenaed for that purpose ; 
 and having thus on compulsion given evidence, they 
 could under section 6 claim a certificate which would 
 operate as a stay to any proceedings against themselves 
 relating to any such matter. 
 
 Penalties and costs may be levied by distress (section Levy and ap- 
 7), and, by section 8, it is provided that one-half of any penalties, &c., 
 penalty which should be adjudged to be paid, should 
 be paid to the person laying the information, and the 
 remainder to the relief of the poor-rate, as therein 
 specified. A question arose as to the effect (if any) of 
 this 8th section on the 47th section of the Metropolitan 
 Police Act (2 & 3 Yict. c. 71). Within the police dis- within the 
 
 ... 1X.CKA7 j metropolitan 
 
 met a penalty 01 oOL was recovered in respect of an police district. 
 offence under the statute 17 & 18 Viet. o. 38, one-half, 
 about which no question arose, was paid to the informer, 
 and the other half was paid to the overseers of the poor. 
 The receiver of the metropolitan police district claimed 
 the moiety which had been paid to the overseers of the 
 poor. The receiver's claim was based upon the 47th 
 section of the Metropolitan Police Act. It was held, 
 that the 17 & 18 Viet. c. 38, s. 8, had not repealed the 
 2 & 3 Viet. o. 71, s. 47, so far as concerned the applica- 
 tion of penalties recovered under the former Act before
 
 252 THE LAW OF GAMBLING. 
 
 a police magistrate of the metropolis, and that section 8 
 impliedly contained the reservation " unless recovered 
 or adjudged before the police courts in the metro- 
 polis"^). 
 Appeal from Under this Act, as under the 8 & 9 Yict. c. 109, a 
 
 summary . . 
 
 conviction. right or appeal from a summary conviction is conferred. 
 With reference to such appeals, it is expressly provided 
 by section 11 that no objection shall be allowed to the 
 information whereon the conviction had taken place, or 
 to such conviction on any matter of form or on any 
 insufficiency of statement, provided that it shall appear 
 that the defendant had been sufficiently informed of the 
 charge intended to be made against him and that the 
 conviction was proper on the merits of the case. Fur- 
 ther, no information, conviction, or judgment can be 
 removed by certiorari into the Court of Queen's Bench. 
 The sections relating to an informal distress, to tender 
 of amends and limitation of actions (sections 12, 13, 14), 
 are literal reproductions of the corresponding sections of 
 the 8 & 9 Yict. c. 109. 
 
 Questions of It now remains to consider the questions of law which 
 the offences have arisen out of the foregoing enactments. The 
 (A.) to (H.). offence (A.) is that of keeping for lucre a house, &c. 
 for playing unlawful games ; the offences (D.) and (E.) 
 relate to keeping a common gaming house ; the offence 
 (H.) relates to keeping a house for the purpose of 
 unlawful gaming. A subsidiary question as to the 
 extension and meaning of the term "place," which 
 occurs in offences (A.) and (H.), may conveniently be 
 reserved until the authorities are considered which arise 
 immediately out of its use in the Betting House Act 
 (16 & 17 Viet. c. 119). 
 
 (TO) Wray v. Ellis, 28 L. J. M. 0. 45 ; 1 El. & El. 276 ; 23 
 Jur. 624; 32 L. T. 157.
 
 OFFENCES RELATING TO GAMING HOUSES. 253 
 
 The first general question is, What constitutes a "Keeping" 
 
 ft i i 111- within the 
 
 keeping, having, holding, occupying, exercising, or meaning of 
 maintaining," or an opening, within the meaning of the statutes - 
 these offences ? By section 11 of the statute of 33 
 Hen. VIII., c. 9, the keeping contemplated is by way of 
 business, for lucre, gain, or living ; by section 2 of the 
 8 & 9 Viet. c. 109, it suffices to show that the house 
 is used for playing, and the increased executive powers 
 under the 17 & 18 Viet. c. 38, clearly contemplate an 
 organized and systematic user of the premises. It is 
 not contemplated that the owner of a house should 
 offend if he once and again by way of recreation there 
 play baccarat or other game with his friends. There 
 are two cases in point arising under the Act which 
 restricted cock-fighting (12 & 13 Viet. c. 92, s. 3). In 
 Clarke v. Hague (n), cocks were fought on one occasion 
 in a bowling-alley, and on no other occasion had cocks 
 been fought there. It was held that such user did not 
 constitute a user within the meaning of the Act. In 
 Morley v. Oreenhalgh (0), there was a cock-fight in a 
 quarry, on one occasion and no more ; it was held that 
 the once using did not make it a place used for cock- 
 fighting. On the other hand, the gaming need not be 
 the sole purpose for which the house is used. In the 
 leading case of Jenks v. Turpin (p), Mr. Justice Haw- 
 kins said, "If the house had been kept open for a double Unlawful 
 purpose, viz., as a honest, social club for those who 
 did not desire to play, as well as for the purpose of a on ^ s 
 gaming for those who did, it would none the less be a 
 
 (n) Clarke v. Hague, 2 E. & E. 281 ; 8 Cox, C. C. 324 ; 29 L. 
 J. M. C. 105 ; 6 Jur. N. S. 273 ; 8 W. E. 363. 
 
 (o) Morley v. Greenhalgh, 3 B. & S. 374 ; 32 L. J. M. 0. 93 ; 9 
 Jur. N. S. 745 ; 7 L. T. H24 ; 11 W. E. 263. 
 
 (p) Jenks v. Turpin, 13 Q. B. D. 505; 53 L. J. M. C. 161 ; 50 
 L. T. 808; 49 J. P. 20 ; 15 Cox, C. C. 486.
 
 254 THE LAW OF GAMBLING. 
 
 house opened and kept for the purpose of gaming." In 
 that case, the main and principal object of the club was 
 gaming at baccarat. From half -past four in the after- 
 noon till eight on the following morning those who 
 liked could play. A night steward, whose duties were 
 in the card-room, was kept. Baccarat was the game 
 throughout the night, and at it thousands were nightly 
 won and lost. At baccarat as there played no bank 
 could be less than 50/. ; and the ordinary regulation 
 banks ranged from 50/. to -300/. ; and the open banks 
 sometimes reached 1,OUO/. Ordinarily, there would be a 
 fresh bank every twenty minutes : a special table and 
 arrangements were provided for the banker and the 
 punters : for each bank three packs of cards were used. 
 For such accommodation the proprietor received from 
 each banker 1 per cent., and each punter 5s. as card 
 money, up to 2 A.M., after which 5s. an hour till 5 A.M., 
 and after that time, to make playing prohibitory, 1L an 
 hour. Members' cheques were cashed by the proprietor 
 at a charge of 1 per cent. This case affords an illus- 
 tration of a strong instance of a house kept for the 
 purpose of gaming. 
 
 The house need not.be kept for the purpose of gaming 
 by all or any person who comes thereto. The doubt as 
 to whether a house kept for the purpose of subscribers, 
 and no others, resorting thereto could be a common 
 gaming house, was alluded to in section 2 of the 8 & 9 
 Yict. c. 109, and it was enacted that it could be. 
 Common, not Hawkins, J., in Jenks v. Turpin, points out that to no 
 
 public 
 
 gaming gaming house is the public at large invited to go with- 
 
 out restriction of some sort or other. The keeper of 
 such a house has always the right to admit or refuse 
 admission to anyone he pleases, or to make such rules 
 as he may think fit for the regulation of such admission.
 
 OFFENCES RELATING TO GAMING HOUSES. 255 
 
 In that case the keeper had placed himself in the hands 
 
 of a committee to elect whom they would, provided only 
 
 the number of members did not exceed five hundred. 
 
 If the admission of five hundred persons to a gaming 
 
 house does not make it a common gaming house, it 
 
 might equally be said that the admission of five thousand 
 
 would not. " The law does not require that it shall be 
 
 a public gaming house : a common gaming house t is that Definition of 
 
 which is forbidden, that is, a house in which a large gaming 
 
 number of persons are invited habitually to congregate 
 
 for the purpose of gaming." 
 
 In the case of Jenks v. Turpin (g), the proprietor of Jenks v. 
 the club had been convicted, under section 4 of the 
 17 & 18 Yict. c. 38, of keeping and using the house 
 for the purpose of unlawful gaming, the committee of Unlawful 
 management had been convicted under the same section 
 as persons assisting in conducting the business of the 
 house so kept for the purpose of unlawful gaming. On 
 the case stated, the question was raised as to what con- 
 stituted unlawful gaming within the section. The con- 
 tention was advanced that the unlawful gaming struck 
 at was gaming at ace of hearts, pharaoh, basset, and 
 hazard (12 Geo. II. c. 28, s. 1), at passage or any game 
 with dice (13 Geo. II. c. 19), or roulet (18 Geo. II. 
 c. 34), and at none other. Smith, J., decided against 
 that contention on the ground that, " in 1854, it is 
 common knowledge that the games of ace of hearts, 
 pharaoh, and basset had fallen into disuse. I cannot 
 suppose that the statute was passed simply to meet the 
 game of hazard and games played with dice, and the 
 keeping of a house in which to play roulet. These were 
 by no means the only games by which gambling was 
 
 (7) Jenks v. Turpin, 13 Q,. B. D. 505 ; 53 L. J. M. C. 161 ; 50 
 L. T. 808 ; 49 J. P. 20 ; 15 Cox, C. C. 486.
 
 256 THE LAW OF GAMBLING. 
 
 carried on at that period. If this had been the inten- 
 tion of the legislature, in my judgment it would have 
 particularized these three games, and not have used the 
 most general words possible, viz., unlawful gaming. 
 The real answer appears to me to be this : to play at a 
 game of chance with cards for money in a common 
 gaming house is unlawful gaming." Hawkins, J., dis- 
 cussed in detail the question whether the house was 
 kept for the purpose of unlawful gaming in the sense of 
 gaming at unlawful games. He commences with the 
 freedom allowed at common law, whereunder the playing 
 at any game was legal; he then passes to the statute 
 of 33 Hen. VIII. c. 9, whereunder no game is made 
 absolutely unlawful, though the offences (A.), (B.), and 
 (C.) are created ; he points out that the 16 Car. II. c. 7, 
 and 9 Anne, c. 14, declared no game unlawful, though 
 excessive or fraudulent gaming at any game was made 
 a penal offence ; he then reviews the 12 Oreo. II. c. 28, 
 relating to ace of hearts, pharaoh, basset, and hazard, 
 and the 13 Q-eo. II. c. 19, touching passage and every 
 other game invented or to be invented with a die or 
 dice ; and then the 18 Greo. II. c. 34, s. 1, regarding 
 roulet or any other game with cards or dice already 
 prohibited by law. By such an examination, the learned 
 judge exhibits the reference in the first section of the 
 8 & 9 Viet. c. 109, to the laws theretofore made in 
 restraint of unlawful gaming, and, commenting on that 
 Legality of section, he says : " Nothing could more clearly indicate 
 skill. the intention of the legislature to legalise to all persons 
 
 and at all times mere games of skill, but to preserve in 
 their integrity all the penalties which then attached to 
 the playing of unlawful games anywhere, or gaming at 
 all (even at lawful games) in common gaming houses. 
 The 17 & 18 Viet. c. 38, is an extension of the 8 & 9
 
 OFFENCES KELATING TO GAMING HOUSES. 257 
 
 Viet. c. 109, and in the former unlawful gaming has as 
 wide a meaning as in the latter Act. " Since that 
 statute (8 & 9 Yict. c. 109) the only games made un- 
 lawful by 33 Hen. VIII. c. 9, are games of dice and 
 cards, whether such games were known at the time of 
 the passing of that statute, or have heen since invented. 
 All such games, if they are games of chance, or games 
 of chance and skill combined (which cannot be called 
 games of mere skill) are, in my opinion, clearly within 
 the meaning of the words unlawful games in 17 & 18 
 Viet. c. 38. The language of the first section of 8 & 9 
 Viet. c. 109, referring to 33 Hen. VIII. c. 9, and re- 
 pealing only so much of it as applies to games of skill, 
 is a strong indication of the intention of the legislature 
 that all the other games mentioned in the statute of 
 Hen. VIII. were to continue to be treated as unlawful 
 in the sense in, and to the extent to which, they were 
 made unlawful by that statute, viz., unlawful if played 
 in a house kept for playing them." Baccarat being a 
 game of cards which is not a game of mere skill, it is 
 " a new unlawful game hereafter to be invented " (r) 
 (sect. 11, 33 Hen. VIII. c. 9), and the evidence esta- 
 blished the offence (A.) described in that section, or the 
 offence (D.) of sect. 4 of the 8 & 9 Viet. c. 109 ; and, 
 further, as baccarat is an unlawful game within the 
 statute, the occupier was properly convicted of offence 
 (H.), described in sect. 4 of the statute 17 & 18 Viet, 
 c. 38, viz., of opening and keeping a house for the pur- 
 pose of unlawful gaming. Hawkins, J., further stated, 
 " Having regard to the house being a common gaming 
 
 (r) In Fairtlough v. Whitmore, 64 L. J. Oh. 386 ; W. N. (1895) 
 52, Stirling, J., held that " chemin defer," though differing 
 somewhat from "baccarat banque," i.e., tho game played in 
 Jenks v. Turf in, was equally an unlawful game. 
 
 G. 8
 
 253 
 
 THE LAW OF GAMBLING. 
 
 Liability of 
 managers. 
 
 Players. 
 
 house, I am of opinion that the conviction may also be 
 supported upon the ground that all gaming therein, 
 even at lawful games, was unlaicful gaminy." 
 
 The committee of management of the club having in 
 some manner assisted in conducting the business thereof 
 were respectively properly convicted. The remaining 
 question in the case arose out of the conviction of certain 
 players who were merely players. It was held that they 
 had not assisted in conducting the business of the club, 
 and had therefore been improperly convicted. But it was 
 not decided whether the players could have been punished 
 otherwise than under section 4 of the 17 & 18 Yict. c. 38. 
 There was no specific imposition of penalties as on 
 players of ace of hearts, pharaoh, basset, hazard, passage, 
 roulet. But as the keeper might have been convicted, 
 (offence (A.) ), under section 11 of the 33 Hen. YIIL c. 9, 
 the players might have been convicted under section 12 
 of the same Act (offence (B.)). Under section 14 of the 
 same Act, the justices had power to bind the players 
 by recognizances, by themselves or else with sureties, 
 " no more to play, haunt, or exercise from thenceforth, 
 in, at, or to any of the said places, or at any of the said 
 games." This power was extended by the statute 
 2 Greo. II. c. 28, s. 9, which recited that under the 
 statute of Hen. YIIL the justices had not power to 
 take any security other than the recognizances of the 
 persons so found playing, and enacted that any justice 
 who should find that any person had been exercising any 
 unlawful games should have full power to commit such 
 offenders to prison, without bail or mainprize, until 
 they should enter into one or more recognizances, with 
 or without sureties, at the discretion of the said justice, 
 not to play or use such unlawful game. The section 14 
 of the statute of Hen. YHI. has been repealed, but the
 
 OFFENCES RELATING "TO GAMING- HOUSES. 259 
 
 extending Act, 2 Geo. II. c. 28, s. 9, does not appear 
 to have been repealed. The powers seem to be in- 
 corporated by section 3 of the 8 & 9 Yict. c. 109. 
 Within the metropolitan district, by the Metropolitan 
 Police Act (2 & 3 Viet. c. 47, s. 48), persons found on 
 the premises without lawful excuse are liable to a 
 penalty (s). In inflicting penalties upon the players it 
 would appear that the common law has been supple- 
 mented; the only offence known to the common law 
 was the keeping of a common gaming house (), 
 
 (s) See ante, p. 246. 
 
 (*) See Hawkins, J., JenJcs v. Turpin, 13 Q. B. D. at p. 517; 
 cf. Smith, J., at p. 535.
 
 260 THE LAW OF GAMBLING. 
 
 CHAPTEE XIII. 
 
 OFFENCES RELATING TO BETTING HOUSES. 
 
 Section (A..) The Statute 16 8f 17 Viet. c. 119. 
 
 The business IN 1853, there existed, in the large, and even in small 
 offices. towns, offices and houses where a regular business of 
 
 betting was carried on. The offices and houses were 
 sometimes conducted by the owner or occupier whose 
 business it might be said to be, or by a manager or 
 sometimes the offices or houses were entrusted to a ser- 
 vant. The business was of this kind A list of races 
 about to take place and the current odds against 
 each horse were placarded, and the proprietor, who, 
 either himself or by another conducted the business, 
 received deposits from all sorts of persons, to abide 
 the event of races on which they were willing and 
 anxious to bet, and they in return for their deposits 
 usually received a ticket which enabled them when 
 the race was over to obtain the money from the office 
 if they won, and if they lost the deposit was gone 
 and they had no further interest in the bet (a) . The 
 keeper, or his servants on his behalf, held the bag 
 against all comers (b] . The preamble of the Act recites 
 that a kind of gaming has sprung up tending to the 
 
 (a) Beg. v. Cook, 13 Q. B. D. 377 ; 51 L. T. 21 ; 32 W. E. 796; 
 48 J. P. 694. 
 (6) Hansard's Parliamentary Eeports.
 
 OFFENCES RELATING TO BETTING HOUSES. 261 
 
 injury and demoralization of improvident persons by 
 the opening of places called betting houses or offices, 
 and the receiving of money in advance by the owners 
 or occupiers of such houses or offices, or by other per- 
 sons acting on their behalf, on their promises to pay 
 money on the events of horse races and the like contin- 
 gencies. The enacting parts of the Act, with the object 
 of rendering evasions difficult, have gone beyond the 
 preamble ; and in attaining that object, have involved 
 the limits of the offences in considerable uncertainty. 
 Thus, in each offence the following sequences of terms 
 are used : " House, office, room, or other place " (here- 
 inafter for brevity spoken of under the single term 
 " place ") ; " opened, kept, or used" (hereinafter denoted 
 by the term " used"). 
 
 The following are the offences created by this Act : 
 
 Offence (A.) under section 1 . Any place used by any Analytical 
 
 . . . J * . statement of 
 
 person [that ts to say, (a) Toy the owner, occupier, or the offences. 
 keeper thereof, or any person using the same ; or (/3) any 
 person procured or employed by or acting for or on 
 behalf of such owner, occupier or keeper, or person 
 using the same ; or (7) by any person having the care 
 or management or in any manner conducting the busi- 
 ness thereof] for either or both of two specified purposes 
 (namely), first, for the purpose of betting with persons 
 resorting thereto ; secondly, for the purpose of receiving 
 money on deposit [that is to say, by or on behalf of such 
 person as and for the consideration for any assurance, 
 undertaking, promise or agreement, express or implied, 
 to pay or to give thereafter any money or valuable 
 thing on any event or contingency of or relating to any 
 horse race or other race, fight, game, sport or exercise, 
 or as and for the consideration for securing the paying 
 or giving by some other person of any money or valu-
 
 262 THE LAW OF GAMBLING. 
 
 able thing on any such event or contingency as afore- 
 said], shall be a common nuisance. 
 One place ^ pl ac e used for the first purpose only, where no 
 
 cannot be 
 
 two common money was received in advance, would be a common 
 the same nuisance. Blackburn, J., in the case of Haigh\. The Town 
 Council of Sheffield (c), expressed a doubt whether an 
 offence could be established without showing that money 
 had been deposited. But in It. v. Prcedie (d) , it is pointed 
 out that the first section extends the preamble, in so far 
 as it says for the one purpose or for the other; similarly 
 in section 3. In the recent case of Bond v. Plumb (e) y 
 the disjunctive character is clearly recognized. Whilst, 
 then, a common nuisance can be so constituted either in 
 the one way or in the other, it is submitted that one 
 place could not at one time be two common nuisances ; 
 if evidence of both purposes were forthcoming, the offence 
 might possibly be aggravated, but it is difficult to think 
 that two indictments could lie, under the circumstances. 
 Offence (B.) under section 2. Any place, a common 
 nuisance within section 1, shall be a common gaming 
 house within the 8 & 9 Viet. c. 109. Again, it is sub- 
 mitted that one place could at one time only be one 
 common gaming house. 
 
 Offence (C.) under section 3. Any owner or occupier 
 of a place, or person using the same, who shall use the 
 same for the purposes mentioned in section 1, or either 
 
 of them, shall be liable 
 
 Offence (D.) under section 3. Any owner or occupier 
 of a place, who shall knowingly and wilfully permit the 
 
 (c) Haigh v. The Town Council of Sheffield, L. E. 10 Q. B. 102 ; 
 44 L. J. M. C. 17 ; 31 L. T. 536 ; 23 W. E. 547. 
 
 (d} R. v. Preedie, 17 Cox, C. 0. 433. 
 
 (e} Bond v. Plumb, (1894) 1 Q. B. 169 ; 70 L. T. 405 ; 42 W. E. 
 222 ; 28 S. J. 99.
 
 OFFENCES RELATING TO BETTING HOUSES. 263 
 
 same to be used by any other person for the purposes 
 aforesaid, or either of them, shall be liable ..... 
 
 Offence (E.) under section 3. Any person having the 
 care or management of or in any manner assisting in 
 conducting the business of any place used for the pur- 
 poses aforesaid, or either of them, shall be liable .... 
 (C.) (D.) or (E.), on summary conviction before two 
 justices of the peace, to be fined a sum of 100/., or to 
 be imprisoned with or without hard labour for not 
 longer than six calendar months. 
 
 A question, which is not free from doubt on the Whether by 
 present state of the authorities, is whether or not each f or t h e two 
 
 of the offences (C.) (D.) and (E.) contain two severable 
 offences. After a raid on a betting house, it is not committed. 
 unusual for a considerable number of summonses to be 
 issued. Thus, the occupier may be summoned separately 
 for using, on a given date, the place for the first purpose 
 and for the second purpose. If he elects to be tried by 
 a jury, the indictment will contain two counts, one 
 charging the user for the one purpose, the other charg- 
 ing the user for the other purpose. If the offences are 
 distinct, the defendant will be liable on conviction to 
 separate penalties. But if the submission above made 
 is correct, namely, that the place at one time would only 
 be one common nuisance and one common gaming 
 house, it would seem that definite indication would be 
 required in section 3 that the same acts should, on sum- 
 mary conviction, constitute two offences ; so far from 
 that definite indication being found, the section says, 
 " for the purposes hereinbefore mentioned, or either of 
 them," whereas it would have been quite easy to have 
 provided that a person who used a place for both pur- 
 poses should be liable to double penalties. In the recent
 
 264 THE LAW OF GAMBLING. 
 
 case of H. v. Brown (e), Hawkins, J., expressed the 
 opinion that the double purpose carried but the single 
 penalty ; Lord Russell, 0. J., pointed out that the evi- 
 dence which would establish the user for the second 
 purpose would go far to establish the user for the first 
 purpose, so much is the second involved in the first ; but 
 Wright, J., differed from the opinion of Hawkins, J. 
 Undoubtedly it is a complete offence under this section 
 to use a place for the purpose of betting with persons 
 resorting thereto, even though no money be deposited 
 in advance : R. v. Preedie (/), Bond v. Plumb (g) ; but 
 it is submitted that, at the same time to use a place for 
 the two purposes, involved as the first is in the second, 
 does not constitute two offences. 
 
 Offences Under section 4, offence (F.) Any person being the 
 
 continued. , . , .. , 
 
 owner or occupier or any place used for the purposes 
 aforesaid, or either of them . . . 
 
 Offence (Gr.) or any person acting for or on behalf of 
 such owner or occupier, or any person having the care 
 or management, or in any manner assisting in conduct- 
 ing the business thereof . . 
 
 (F.) and (Gr.) who shall receive, directly or indirectly, 
 any money or valuable thing as a deposit on any bet on 
 condition of paying any sum of money or other valuable 
 thing on the happening of any event or contingency of 
 or relating to a horse race, or any other race, or any 
 fight, game, sport, or exercise, or as or for the considera- 
 tion for any assurance, undertaking, promise, or agree- 
 ment, express or implied, to pay or give thereafter any 
 
 (e) R. v. Brown, (1895) 1 Q. B. 119; 64 L. J. M. 0. 1. 
 (/) R. v. Preedie, 17 Cox, C. 0. 433. 
 
 (g} Bond v. Plumb, (1894) 1 Q. B. 169; 70 L. T. 405; 42 
 W. E. 222 ; 38 S. J. 99.
 
 OFFENCES EELAT1NG TO BETTING HOUSES. 265 
 
 money or valuable thing on any such event or contin- 
 gency, shall be liable . . . 
 
 Offence (H.) And any person giving any acknowledg- 
 ment, note, security, or draft on the receipt of any 
 money or valuable thing so paid or given as aforesaid, 
 purporting or intended to entitle the bearer or any other 
 person to receive any money or valuable thing on the 
 happening of any such event or contingency as afore- 
 said, shall be liable to ... 
 
 (F.), (Gr.), or (H.) upon summary conviction before 
 two justices of the peace, to be fined a sum of 50/., or 
 to be imprisoned, with or without hard labour, for three 
 calendar months. 
 
 There appears to be no authority on this section and Relation of 
 the relation of the offences (F.), (Gr.), or (H.) to the major 
 offences of sect. 3. A typical charge is, that A. B., 
 being owner of a certain house used by him for the 
 purposes of receiving money on deposit, &o., did on a 
 certain date receive a certain sum of money, to wit, &o., 
 from one C. D., on a bet, &c. It is obvious that a large 
 number of such summonses could be commonly issued. 
 Before obtaining a conviction it would be necessary to 
 prove the major charge probably the defendant's books 
 would be put in evidence then the receipt of the specific 
 deposit would be proved. But if the defendant be first 
 punished for the major offence, it seems in the last 
 degree unjust to make that the foundation of further 
 convictions on a series of minor charges. The defendant 
 received deposits at a place : ergo, he kept a place for the 
 purpose, and accordingly was punished ; but keeping a 
 place for the purpose, he received deposits : ergo, he 
 committed offences, and accordingly must be punished 
 times more. It is to be hoped that a defendant who 
 has been tried on the major offence will meet the minor
 
 266 THE LAW OF GAMBLING. 
 
 summons with a plea in bar in the nature of autrefois 
 convict or acquit. If he should plead guilty, under- 
 standing that the justices will bind him over to come 
 up for judgment when called on, he may, if called up 
 for judgment, find himself in an evil position (/). The 
 difficulty arises on whatever construction is placed on 
 the section. If the occupier were convicted on the major 
 offence, his servant or agent might be convicted under 
 sect. 4 ; but even then the agent himself might have 
 been convicted on the same evidence under the 3rd 
 section. As a matter of practice, the summonses issued 
 under the 4th section are not commonly proceeded with 
 after a conviction for the major offence. 
 
 Saving clause There is an important qualification with regard to the 
 deposits. receiving by way of deposit. By sect. 6 it is provided 
 that nothing in the Act shall extend to any person re- 
 ceiving or holding any money or valuable thing by way 
 of stakes or deposit to be paid to the winner of any race 
 or lawful sport, game, or exercise, or to the owner of 
 any horse engaged in any race. On this proviso, the 
 cases and questions raised under the similar proviso in 
 sect. 18 of the 8 & 9 Yict. c. 109, are in point, and will 
 Power to be found in Chapter VII. , pp. 145 et seq. In the pre- 
 
 recover de- . . , , K . ... j _ i 
 
 posits in spite vious section (sect. 5), provision is made whereunder a 
 of illegality. <j e p 0s it or may recover his deposit, in spite of the ille- 
 gality which attaches to the act of making the deposit. 
 The delirium is not treated as par between the depositor 
 and the holder of the bag against all comers. 
 Offences of Offence (I.) Under sect. 7, offences connected with the 
 
 advertising. 
 
 (/) A client, to whom these remarks applied, appealed against 
 a sentence of three months' imprisonment with hard labour ; 
 his view of the matter was, " First I was punished for getting 
 drunk, next I am punished for the separate whiskies which 
 made me so."
 
 OFFENCES RELATING TO BETTING HOUSES. 267 
 
 advertising of betting places are created ; but, as these 
 have been extended by a subsequent statute, it will be 
 more convenient to consider the whole of such offences 
 together. 
 
 As in the Gaming House Acts, so in this Act, the Executive 
 justices of the peace have power to issue a special search 
 warrant ; in fact, in identical form with that under 
 the 8 & 9 Viet. c. 109. The complaint is made, before 
 any justice of the peace, that there is reason to suspect a 
 place to be used as a betting house or office contrary to 
 the Act, thereupon the search warrant is issued, where- 
 under the officers may, with or without force, enter and 
 diligently search the suspected place, and search and 
 arrest the keepers and all persons there haunting and 
 resorting; within the metropolitan police district, the 
 commissioners of police may authorize the superinten- 
 dent of the police to search. The statute 16 & 17 Yict. 
 c. 119, does not create any offence whereunder the mere 
 resorters can be punished ; in fact, by first speaking of 
 them in the preamble as improvident persons, it shows, 
 by sect. 6, that the policy of the Act is to protect 
 such persons, and not to treat them as participes criminis. 
 The Act, however, by sect. 2, has declared such a house 
 to be a common gaming house within the statute 8 & 9 
 Viet. c. 109, and such persons might be dealt with as 
 resorters to a common gaming house. There are no pro- 
 visions in this Act against obstructing the officers in 
 executing the search warrant ; but if the place be 
 deemed a common gaming house within the earlier 
 statute, it is submitted that, as such, the provisions of 
 the statute, 17 & 18 Viet. c. 38, would apply to that par- 
 ticular species of gaming house as well as to any other. 
 
 The statute 16 & 17 Viet. c. 119, does not directly witnesses, 
 provide for the giving of evidence by persons found on
 
 268 THE LAW OF GAMBLING. 
 
 the premises, as was done in sect. 9 of the statute 8 & 9 
 Viet. c. 109, the provisions whereof were supplemented 
 by those of sect. 5 of the statute 17 & 18 Viet. c. 38. 
 As the statute created no specific offence, and did not 
 render such persons liable even to be bound by recog- 
 nizances, it may have been thought unnecessary to pro- 
 vide an indemnity. As a matter of practice, people, 
 whose names are found in the books of the betting 
 house, are commonly served with subpoenas to give evi- 
 dence. Men sending deposits to a bookmaker are aware 
 of the unpleasant chance of future publicity, and, in 
 order to evade it, not unfrequently use another person's 
 name. It ought to be an offence thus to involve an 
 innocent person in annoyance and loss of time. 
 Appeal, cer- The Act contains a section which gives a right of 
 
 tiorari. 
 
 appeal from a summary conviction. That section (13) 
 and the sections relating to objections on matters of 
 form, and to the removal of process by certiorari, and 
 to distress on an informal process, and to tender of 
 amends and limitations of actions, are analogous to the 
 corresponding sections in the Gaming House Acts. 
 
 Order for In a n unreported case (#), the justices, after con- 
 
 destruction of .. if-, i> P , . 
 
 books. victing a defendant of one of the major offences, made 
 
 an order for the destruction of his books, which had 
 been seized on executing the search warrant. The 
 defendant obtained a rule for an order nisi calling 
 on the justices to show cause why a writ of certiorari 
 should not issue directing them to bring up their 
 order for the purpose of being quashed. The jus- 
 tices relied on the 25th section of the statute, but it 
 was determined that that section, of course, did not 
 
 (</) Moore and others v. Wilccx and others, 1889, a decision of 
 Coleridge, L. 0. J., and Bowen, L. J.
 
 OFFENCES RELATING TO BETTING HOUSES. 269 
 
 apply for the protection of order made without juris- 
 diction, and that the order in question was made without 
 jurisdiction; for, whilst under the llth section of the 
 Betting House Act the books and documents were 
 properly before the magistrates, yet assuming that that 
 section could be combined with the 8th section of the 
 8 & 9 Yict. c. 109, the latter section only extended to 
 " cards, dice, &c., or other instruments of gaming," and 
 did not include such books and documents. 
 
 This statute extended to Ireland, but did not extend Statute 
 to Scotland, and hence, subsequently arose the occasion England and 
 for the passing of Anderson's Act (37 Viet. c. 15). Ireland only< 
 
 The principal procedural matters are discussed in Procedure. 
 Chapter XI. But attention may again be called to the 
 case of Blake v. Beech (Ji). In that case, pursuant to the 
 powers of section 11 of the Act 16 & 17 Yict. c. 119, a 
 search warrant had been issued and executed ; the house 
 searched was therein stated to be suspected of being 
 used as a common gaming house within the meaning of 
 the statute 8 & 9 Viet. c. 109 ; the information was to 
 the same effect. The appellant, however, was subse- 
 quently charged under the 3rd section of the statute 
 16 & 17 Viet. c. 119, for that he " on the 17th day of 
 October, 1875, at the borough aforesaid, being the per- 
 son having the management of a room in a certain house 
 called the 'Angel,' situate, &c., did use such room for 
 the purpose of betting with persons resorting thereto 
 upon certain events and contingencies relating to certain 
 horse races, contrary," &c. (i). Before the magistrates 
 
 (7i) Blake v. Beech, 1 Ex. Div. 320; 45 L. J. M. 0. Ill; 34 
 L. T. N. S. 764 ; 4 J. P. 678. 
 
 (i) The charge should have stopped at the words "resorting 
 thereto," that is, the complete offence ; the additional words are
 
 270 THE LAW OF GAMBLING. 
 
 it was contended that, after the issue of the search 
 warrant, an information ought to have been laid, and 
 that a summons embodying the substance of such infor- 
 mation ought to have been delivered to the appellant. 
 But the justices, whilst they were of opinion that it 
 was due to the defendant to have the information, did 
 not think it was sufficient ground for a discharge. The 
 judgment of Cleasby, B., with whom Grove, J., agreed, 
 turned on the point that the only information was that on 
 which the warrant was issued under 8 & 9 Yict. c. 109, 
 s. 3, namely, for keeping a common gaming house ; but 
 the charge made when the defendant was brought up 
 was a charge which could not be made under 8 & 9 Viet, 
 c. 109, and it was made under 16 & 17 Viet. c. 119; 
 this made the proceedings irregular. It was also held, 
 that the sections of the Act, other than section 11, 
 showed that it was not intended by that section to 
 introduce an exceptional procedure of having a man put 
 on his trial without any previous notice : " it is an 
 important section, because, as the purposes for which the 
 house, &c., was used would be difficult of proof, and the 
 person managing the house not known, it enables the 
 magistrate to have the person found there brought up so 
 as to know who ought to be charged" (/). 
 Questions T ne Act, un like the Graining House Act, does not 
 
 arising out of 
 
 the foregoing state what evidence shall suffice to support the offences. 
 
 The elements are, first, a place within the meaning of 
 
 the Act, and, secondly, a user for one or other of the 
 
 "Place" forbidden purposes. It is difficult to say to what extent 
 
 separated these two elements are severable. If the term " place " 
 
 from "user, meail g an y focus, which could be used for either of the 
 
 frequently added, but they should be omitted when charging a 
 using for the first purpose. 
 
 (Z) Anderson v. Hume, 46 J. P. 825.
 
 OFFENCES RELATING TO BETTING HOUSES. 271 
 
 mentioned purposes, then the two elements are not dis- 
 tinct. The question whether or not a given locus is a 
 place within the meaning of the Act, is a question of 
 fact which must depend 011 all the circumstances ; simi- 
 larly, the question whether there has been a user within 
 the Act, is a question of fact which must also depend 
 on all the circumstances of the case. The following 
 oases will illustrate the inferences which have been 
 drawn in particular instances, and will therefore serve 
 as suggesting the probable inferences to be drawn from 
 other sets of circumstances which may arise for adjudi- 
 cation. 
 
 In Doqgctt v. Cattcrns (m), the plaintiff sued the de- Doggettv. 
 
 Catterns. 
 
 f endant in an action for money had and received by the 
 defendant to the use of the plaintiff; the defendant 
 pleaded that the money alleged to have been had and 
 received by the defendant for the use of the plaintiff, 
 was money deposited by the plaintiff with the defendant 
 under a contract by way of wagering and gaming and 
 illegal betting on horse races. The plaintiff argued 
 that his right to recover was none the less owing to the 
 operation of the 5th section of the statute. The cir- 
 cumstances under which the deposits had been made 
 were as follows : The defendant was in the habit of Table in 
 standing at a table placed under a tree in Hyde Park y ' 
 for the purpose of making bets with persons who resorted 
 thereto, and of receiving deposits from the resorters. 
 The Court of Common Pleas decided that, as the defend- 
 ant was carrying on the trade of betting, he was using 
 a " place " within the Act, and that the plaintiff was 
 entitled to recover. The defendant appealed. It will 
 be seen that, granting the illegality, the plaintiff was 
 
 (m) Doggett v. Cattern*, 19 C. B. N. S. 765 ; 34 L. J. C. P. 
 159 ; 11 Jur. N. S. 243 ; 12 L. T. 355 ; 13 W. E. 390.
 
 272 THE LAW OF GAMBLING. 
 
 alone entitled to recover (if at all) under the 5th section, 
 that is, by showing that the defendant was " such person" 
 as is therein mentioned. On appeal, Crompton, J., held 
 that those words, " such person," in section 5, mean " any 
 person being the owner or occupier of any place," as 
 specified in section 4, and do not include a person using 
 a place of which he was neither the owner nor the occu- 
 pier. Pollock, C. B., with reference to the question at 
 issue, said that the locus in quo to be a place must be 
 capable of having an owner or occupier. He added that 
 the fact of its being an open place without any house, 
 office, or room, would not alone prevent it from being a 
 place within the statute. - With this judgment Black- 
 burn, J., and Channel, B., agreed. Bramwell, J., based 
 his judgment on the ground that places to be within 
 
 Decision con- the statute must be ascertained places of resort. This 
 case was considered by Hawkins, J., in Reg. v. Precdie (n) ; 
 the learned judge said the case had often been cited as 
 deciding that a man day after day, at a table placed 
 under a clump of trees in Hyde Park, carrying on his 
 business of betting, receiving money in advance on bets 
 on horse races, could not be convicted under section 3. 
 But the learned judge points out the consideration 
 advanced above, that the case turned on section 5, 
 involving section 4. He adds : " For my own part, I 
 think it is not essential to a place within section 3 that 
 it should have an occupier, or that the person who uses 
 it for the illegal purpose should have permission to do 
 so from either the owner or occupier." 
 
 Shaw*?. In the case of Shaw v. Morley (0), the appellant had 
 
 been convicted of " having the care and management of 
 
 (n) R. v. Preedie, 17 Cox, C. 0. 433. 
 
 (o) Shaw v. Morley, L. E. 3 Ex. 137 ; 37 L. J. M. C. 105; 19 
 L. T. 15; 16W.E. 763.
 
 OFFENCES RELATING TO BETTING HOUSES. 273 
 
 and assisting in conducting the business of an office and 
 place at Doncaster, then and there opened, kept, and 
 used for the purpose of betting with persons resorting 
 thereto." The town council of Doncaster were owners 
 of Doncaster Town Moor, where the Doncaster races 
 were run ; at various times race stands had been built 
 on a portion of the ground fronting the racecourse, 
 which was inclosed by iron railings, and was called the 
 " inclosure," and to the grand stand and inclosure the 
 public were admitted by guinea tickets during the four 
 days of the September meeting. Along the east end of 
 the inclosure, outside it, and at a distance of about six 
 feet from the iron railing which inclosed it, ran a per- 
 manent wooden palisade, forming with the iron railing 
 a space of about forty-four yards long and six feet 
 wide. In 1867 this space was let to "William Nicholl Offices in an 
 
 inclosure at a 
 
 for the meeting. He divided it by partitions, and in racecourse, 
 each division a wooden structure of five feet high was 
 erected, fronting both ways, the iron railing being on 
 one side, the wooden palisade on the other. The struc- 
 ture, of which the appellant had the care and manage- 
 ment, was covered with green baize, and had boards 
 used as desks fronting each way ; a man sat at each 
 desk, who acted as clerk and recorded the proceedings 
 in the book lying on the desk before him. Upon this 
 structure was a board fronting both ways, bearing the 
 words " William Nicholl, of Nottingham," and papers, 
 partly printed and partly written, with the names of 
 races, horses, and betting prices. The betting lists so 
 exhibited had on them the odds for and against each 
 horse in each race upon which William Nicholl, the pro- 
 prietor of the structure, was prepared to bet. In respect 
 of his care of the said structure, so used, the appellant 
 was convicted, and appealed. For the appellant it was 
 
 O. T
 
 THE LAW OF GAMBLING. 
 
 Absence of 
 roof im- 
 material. 
 
 Bows v. 
 Jenwick. 
 
 Umbrella 
 fastened to 
 ground. 
 
 contended that the Act did not apply to racecourses, and 
 that such a temporary roofless structure was not within 
 the Act. But Kelly, C. B., said, " It is no matter 
 whether there is a roof or none, or whether the structure 
 is movable or fastened to the earth: it is clearly an 
 office within the Act. Then, was the business conducted 
 by the appellant the business prohibited by the Act ? 
 The preamble shows that it is within the intent of the 
 Act ; for the mischief recited is exactly gaming of the 
 description which was here conducted by the appellant, 
 carried on by means of an office." Martin, B., in the 
 course of his judgment, said " the structure was both an 
 office and a place." Pigott, B., whilst admitting that 
 the mischief chiefly aimed at was the establishment of 
 betting houses in towns, said, "fortunately, the lan- 
 guage is large enough to hit those who are attempting 
 to evade its provisions by plying their trade upon a 
 racecourse." 
 
 In the case of Bows v. Fenwick (p), the appellant was" 
 convicted that he, being the occupier of a certain place, 
 to wit, a standing on a certain racecourse, unlawfully 
 used the said standing for the purpose of betting with 
 persons resorting thereto. The facts were as follows : 
 The defendant was on the racecourse at Chester, stand- 
 ing on a stool about two feet six inches high, over which 
 was a large umbrella, similar to a carriage umbrella, 
 capable of covering several persons, the stock being 
 made in joints like that of a sweep's brush, so as to be 
 taken in pieces, and was fastened in the ground with a 
 spike. The umbrella, when opened, was seven or eight 
 feet high. It was a showery day, but the umbrella was 
 kept up, rain or dry. On the umbrella was painted, in 
 
 (p) Bows v. FenwicJc, L. E. 9 C. P. 339 ; 43 L. J. M. C. 107 ; 
 30 L. T. 524 ; 22 W. E. 804.
 
 OFFENCES RELATING TO BETTING HOUSES. 275 
 
 largo letters, " Of. Bows, Victoria Club, Leeds." There 
 was also a card exhibited, on which were the words, 
 " We pay all bets first past the post." The defendant 
 was calling out, offering to make bets ; and he was seen 
 to make several bets, and, at such time, to receive de- 
 posits of money, and for which he gave tickets. The 
 question raised by the case stated was whether the stool 
 and umbrella used as aforesaid by the defendant did 
 constitute a " place " within the terms of the Act. Lord 
 Coleridge, C. J., said : "It is plain that the appellant 
 was (provided the stool and umbrella constituted an 
 office, room, or place within the meaning of the Act) 
 publicly using them for a purpose prohibited by the 
 Act. The only question raised before us was, whether 
 or not they did constitute an office, room, or other place. 
 Now, the thing described clearly was not a house or a 
 room. Was it an office or other place ?. Possibly it 
 might be said to be in some sense an office ; but I am 
 of opinion that, at all events, it was a ' place.' It was 
 an ascertained spot, where the appellant, for the time at 
 least, carried on the business of betting with all persons 
 who might resort thither for that purpose. The card, 
 connected with the umbrella and the inscription upon it, 
 clearly indicated a fixed and ascertained place used by 
 the appellant for a purpose prohibited by the Act." 
 Lord Coleridge, after stating that the Act, being an The Act to be 
 interference with the liberties of the subject, must be 
 construed strictly, held that the case was on all fours 
 with Shaw v. Mbrley. He added : " There is a sufficient 
 fixity of the structure, by means of the spiked umbrella, 
 to bring the case within the words of the Act, and it is 
 clearly within the mischief of the Act." Brett, J., said : 
 " It would seem that the kind of gaming prohibited is 
 the opening and keeping a place for the purpose of 
 
 T2
 
 276 
 
 THE LAW OF GAMBLING. 
 
 gaming or betting with persons resorting thereto a 
 
 fixed place to which all persons may resort. I agree 
 
 that it is necessary that it should be a fixed place, 
 
 Place must be whether on a racecourse or elsewhere. . . . The place 
 
 fixed and 
 
 ascertained, used need not be a house, office, or room, but that it 
 must be a fixed and ascertained place. Now, was this 
 a fixed place ? It was a place selected and fixed upon 
 by the appellant for persons who desired to deal with 
 him to resort to. ... The appellant goes there with a 
 stool, and a thing which probably is not an umbrella, 
 but is more like an open tent. He takes it, not to 
 shelter him from the rain, but to be a fixed place. The 
 material part of the statement is that, having fixed this 
 umbrella or tent into the ground, with his name painted 
 on it, and a reference to a club at Leeds, he exhibits a 
 card with these words, ' We pay all bets first past the 
 post,' meaning obviously, we pay here ; or, in other 
 words, if the holders of tickets will resort to or come 
 under this umbrella, they will be paid, if winners. The 
 umbrella was intended as a fixed place for persons 
 desirous of making bets to resort to, and was clearly a 
 place within the contemplation of the Act, as inter- 
 preted by this Court, and by the Exchequer Chamber 
 in Doggett v. Cotter**." Denman, J., concurred, and 
 added : " It was enough that there was a piece of 
 ground ascertained and appropriated by the appellant 
 for carrying on his proceedings." 
 
 These two cases of Sliaw v. Morley (q), and Boies v. Fen- 
 wick (r), are of much importance with regard to betting 
 on racecourses. But whilst the facts therein respectively 
 
 (q) Shaw v. Morley, L. E. 3 Ex. 137 j 37 L. J. M. 0. 105 ; 19 
 L. T. 15 ; 16 W. E. 763. 
 
 (r) Sows v. Femmck, L. E. 9 C. P. 339 ; 43 L. J. M. C. 107 ; 
 SOL. T. 524; 22 W. E. 804.
 
 OFFENCES RELATING TO BETTING HOUSES. 277 
 
 illustrate what will suffice to support a conviction, the 
 false inference must not be drawn that no conviction 
 could be obtained in the absence of the fixed umbrella 
 and placard, as in the later case, or in the absence of a 
 structure, as in the former case. The principle seems 
 to be that the locus must be so fixed and ascertained, 
 that persons may resort thereto for the purpose of 
 betting with a person there carrying on the business of 
 betting. In the two foregoing cases, the defendants 
 adopted particular means for fixing and advertising the 
 place. 
 
 In the case of Eastwood v. Miller (s), the appellant Eastwood? 
 was charged that he did unlawfully use a certain place, 
 to wit, a field, for the purpose of betting on a certain 
 pigeon-shooting match for money, contrary to 16 & 17 
 Viet. c. 119, s. 3. The facts were as follows : The 
 appellant was the occupier of the borough park ground ; 
 on payment, people were admitted to the grounds, which 
 were inclosed, and were of over three acres in extent. 
 A number of people were there, and amongst them two 
 bookmakers, with books in their hands, shouting out, 
 " Twenty to one on the match," being a certain pigeon- 
 shooting match then and there to be held. Bets with 
 the bookmakers prior to the match, and during the 
 course of the match, were proved to have been made by 
 the public. The appellant was convicted, and, on the 
 appeal, raised two questions : first, whether the ground 
 was used or permitted to be used by the appellant for 
 the purposes of betting ; secondly, whether the ground 
 was a " place " within the meaning of the Act. Lush, 
 J. : " It could hardly be contended that grounds un- 
 covered cannot be a ' place ' within the meaning of the 
 
 (s} Eastwood v. Miller, L. E. 9 Q. B. 440 ; 43 L. J. M. C. 139 ; 
 30 L. T. 716; 22 W. E. 799 ; 38 J. P. 647.
 
 278 THE LAW OF GAMBLING. 
 
 Act. I see no reason whatever, from the framing of 
 the Act, to hold that there cannot be a 'place' within 
 the meaning of the Act unless it is a structure of some 
 An inclosed kind a building or a tent. An inclosed area, though 
 uncovered, might as well be a ' place ' within the Act as 
 a place either covered with canvas as a tent, or a light 
 structure as a building. It is an inclosed place, occu- 
 pied exclusively by the appellant, and is therefore 
 within the language and intent of the Act. The fact 
 that it is a large inclosure cannot affect the question. 
 Whether it is a quarter, a half acre, or three acres, 
 cannot affect the question, if it is a 'place' occupied 
 and inclosed within the meaning of the Act, to which 
 persons were admitted by the sufferance of the occu- 
 pier." Archibald, J. : "I think we should fall very far 
 short in carrying out the object of this Act if we were 
 to hold that it was necessary that there should be a 
 room, or house, or office, or erection of some kind, in 
 order to its being a ' place ' within the meaning of the 
 Act. There may be a 'place,' although it is in the 
 open air ; there may be a ' place ' without any kind of 
 erection ; and, of course, it must depend on the circum- 
 stances of each particular case whether it is brought 
 within the description of 'place.' Upon the facts, as 
 they appear here, the magistrates were justified in hold- 
 ing that this was a ' place.' The area is three or four 
 acres in extent. The ' place ' is one inclosed, having a 
 gateway. Persons were admitted by ticket, and on 
 payment for a price of entrance. The appellant is the 
 occupier of this inclosed land, and received money from 
 the persons for admission into it. I think, under these 
 circumstances, it cannot be doubted that this was a 
 ' place ' within the meaning of the Act." 
 
 It is, perhaps, unfortunate that in this case of East'
 
 OFFENCES RELATING TO BETTING HOUSES. 279 
 
 wood v. Miller, neither Shaw v. Morley, nor Bows v. 
 Fenwicky were cited to, or referred to by, the Court. The 
 judgments were much influenced by Doggett v. Cat terns, 
 and the clear distinction between the facts in the two 
 cases in the former no occupier, in the latter an in- 
 closed area with an occupier. It will be seen hereafter 
 that it is not necessary that the " place " should have 
 an occupier, as in Eastwood v. Miller. The decision, 
 however, is that an inclosed area, to which admission is 
 obtained by payment, may be a "place" within the 
 statute. The conviction of the appellant that he did 
 wilfully and knowingly permit the place to be used by 
 persons for the purpose of betting, whilst it affords an 
 illustration of what evidence did suffice, before that par- 
 ticular bench of magistrates, to support a conviction for 
 wilfully and knowingly permitting, further involves the 
 conclusion that the bookmakers were committing by 
 their acts an offence against the Act, namely, an illegal 
 user of the place. 
 
 In the case of Haigh v. The Town Council of Sheffield (f) , Haigh v. The 
 the appellant was charged that he being the occupier of O f Sheffield. 
 a certain place, to wit, Hyde Park Cricket Ground, 
 situate, &c., unlawfully, knowingly, and wilfully, did 
 permit the said place to be used by George Trickett and 
 others for the purpose of betting with persons resorting 
 thereto. The appellant occupied, as tenant, a house A cricket 
 together with an inclosed piece of ground adjoining g 
 called Hyde Park Cricket Ground, used for cricket, 
 foot racing, and other games and sports. On the day 
 named in the summons foot racing took place in the 
 grounds to which persons were admitted on payment of 
 sixpence. Within the grounds, but outside the space 
 
 (t) Haigh v. The Town Council of Sheffield, L. E. 10 Q. B. 102 ; 
 44 L. J. M. C. 17 ; 31 L. T. 536; 23 W. E. 547.
 
 280 THE LAW OF GAMBLING. 
 
 reserved for the runners, and amongst the spectators, 
 some fifteen or twenty persons, being clearly profes- 
 sional bettors (Greorge Trickett being one of them), 
 stood on chairs and stools in different spots, with books 
 in their hands, calling out the odds on the various 
 runners, and betting with different persons. A man 
 behind each of the bettors recorded the bets in a book. 
 The persons betting paid money (Is. each) and received 
 a ticket. A large number of persons assembled in the 
 grounds, to the number of upwards of 10,000. Although 
 there was nothing to show the terms on which Trickett 
 and the other professional bettors were admitted to the 
 grounds, the evidence satisfied the magistrate that the 
 appellant knew of what was going on, and took no steps 
 to prevent it, and that he might have prevented it had 
 he so minded. On such evidence the magistrate con- 
 victed the appellant. Blackburn, J., held, after all the 
 previous cases had been cited, that the grounds were a 
 " place " within the Act ; for " it was completely under 
 the control of the appellant just as much as an ordinary 
 skittle ground is, and it is immaterial that it was not 
 " Place " covered over." Mellor, J., said, " As to this not being a 
 
 cjtisdem . . 
 
 generis, con- ' place,' I think that point quite unarguable," and he 
 far appUc- W ^ nus dealt with the argument that the word " place " in 
 the Act must be construed ejusdem generis (it) : " "We 
 must first look at the object of the Act, and we must 
 also bear in mind that every word in succession in this 
 enactment is larger in its meaning than the preceding 
 word, until at last we come to ' other place,' so that 
 assuming the rule of construction as to ejusdem generis 
 to be applicable, we are not bound by the strict rule, or 
 to give any narrow interpretation to the word ' place.' " 
 
 (u~) See also Grove, J., in Galloway v. Maries, 8 Q. B. D. 275; 
 51 L. J. M. C. 53; 45 L. T. 763; 30 W. E. 151 ; 46 J. P. 326.
 
 OFFENCES RELATING TO BETTING HOUSES. 281 
 
 It was hardly argued that if the locus in quo was a 
 place, and if user on one occasion constituted user 
 within the Act, that what the bookmakers were doing 
 was not illegal ; but the point advanced for the appel- 
 lant was that he had not knowingly and wilfully per- 
 mitted the illegal user. But the Court held that the 
 bookmakers were illegally using the place, and, on the 
 evidence, might be held habitually to have used the 
 place, if that were necessary, and that the occupier was 
 within the principle that a man must be taken impliedly Implication 
 to be answerable for what he knows to be the ordinary 
 consequence of what he expressly permits (#). It will 
 have been noticed that in neither of the two last-men- 
 tioned cases were the bookmakers using any particular 
 spot, fixed, as in Bows v. Fenuick, by the umbrella, or by 
 the structure in Shaw v. Morley ; they were simply using 
 the inclosures. 
 
 In the case of Qallaway v. Maries (y), the respondent Gaiiaway\. 
 on the appeal had been charged with using a place for 
 the purpose of betting with persons resorting thereto. 
 The following facts were proved or admitted : A race 
 meeting was held in Four Oaks Park, a private park 
 belonging to the Four Oaks Park Company, admission 
 thereto being by payment. The respondent and John 
 Schester paid for admission to the park and to the 
 grand stand in the park, and during the races were in 
 a railed inclosure attached to the stand, which inclosure 
 was opened to persons admitted to the grand stand and 
 was commonly called and known as the ring. Whilst Wooden box 
 
 in & railed 
 
 in the inclosure Schester stood upon a small wooden inclosure on 
 box, which was not in any way attached to the ground, 
 
 () It. v. Moore, 3 33. & Ad. 184. 
 
 (y) Oallaway v. Maries, 8 Q. B. D. 275 ; 51 L. J. M. 0. 53 ; 
 45 L. T. 763 ; 30 "W. E. 151 ; 46 J. P. 326.
 
 .282 THE LAW OF GAMBLING. 
 
 and he and the respondent, who were in company and 
 acting together, were calling out in the inclosure and 
 were offering to make, and they made, ready money 
 bets with other persons on some of the races. Schester 
 received the money for the bets made, and the respon- 
 dent booked the same ; they stood together in one place 
 within the inclosure during the races. The justices 
 were of the opinion that the inclosure was not a "place" 
 within the meaning of the Act, and that the box did 
 not constitute such a place. On a case stated, the 
 question was whether the respondent was, on the facts, 
 within the 3rd section of the Act. The respondent and 
 his companion had this small wooden box, not attached 
 to the ground, but denning a certain spot in a certain 
 limited railed inclosure, and there standing on and at 
 the box, they advertised by their shouts their willingness 
 to bet, and took and made bets, and remained in the 
 same spot during the races. Grove and Lopes, JJ., 
 were of opinion that they were within the Act. Mr. 
 Justice Grove examined the case of Bows v. Fenwick, 
 and said that the judgment was based on two grounds : 
 first, that the appellant in that case was using an ascer- 
 tained spot for his business of betting ; and, secondly, 
 that the card and umbrella indicated a fixed and 
 ascertained place. He said, " I think the ground of 
 the judgment was that the place was fixed, and the 
 umbrella was only considered as indicating a place to 
 the public around. The question is, whether the Court 
 would have come to the same conclusion, if the umbrella 
 had been wanting and the man had used some other 
 Important means of attracting the public. I am inclined to think 
 the fixity. that the more important consideration is the fixity of 
 the place, not, indeed, absolute fixity, as in the case of 
 fixtures, but in the sense of the "place" being and
 
 OFFENCES RELATING TO BETTING HOUSES. 283 
 
 remaining the same for a considerable time, long enough, 
 for the betting public to know where persons offering or 
 willing to make bets might be found. . . . Coupling the 
 judgment in Shaw v. Morley with the decision in Bows 
 v. Femcick, it would appear that the umbrella, being a 
 mere advertisement, made no difference, but might be 
 regarded only as indicating the fixed and ascertained 
 place." The learned judge concludes, "Therefore I 
 think all the cases show that a 'place,' to be within 
 the statutes, 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 indi- 
 cated by a certain definite mark with whom they may 
 bet. I do not decide whether a person standing on a 
 carriage step or in a circle where the turf was cut away, 
 or where a little heap of stones was put down during 
 the races, would be within the Act if he offered to bet 
 there. But I am far from saying that he would not be 
 so. Here, however, there was in my opinion, a place 
 within the meaning of the Act." 
 
 In the case of Eastwood v. Miller, it did not appear that 
 the bookmakers stood still in the crowd on definite spots, 
 and in Haiyh v. The Town Council of Sheffield, the chairs 
 used by the bookmakers were movable ; so that it must 
 not on the authorities be concluded that, if a man con- 
 tinually moves about in a prescribed, though possibly 
 large, area, amongst the persons resorting to that area, 
 he cannot be convicted of using such locus in quo for the 
 purposes and in the manner prevented by the Act. But 
 ex necessitate, by moving about in the area and by not 
 using any method of advertising his object, he would 
 render the proof of illegal user of the place exceedingly 
 difficult though not impossible, and similarly this diffi- 
 culty would be experienced on attempting to convict
 
 284 THE LAW OF GAMBLING. 
 
 the owner or occupier of knowingly and wilfully per- 
 mitting such illegal user. 
 
 Snow v. Hill, In the case of Snow v. HUl(x), the appellant had been 
 convicted of illegally using a certain field. The f ollow- 
 img are the facts : On a certain date, dog races for 
 prizes open for public competition, after entries made 
 by the owners of the dogs, were held in an inclosed 
 
 Alleged field, about four acres in extent. The ground had 
 
 illegal user of 
 
 a field. been let for hire for the purposes of the race meeting 
 
 to a committee, who carried out the arrangements for 
 the racing, and the admission of the persons who re- 
 sorted to the ground. The public were admitted to 
 one portion of the field (which was divided by a rope 
 from that part of the field on which the races were run) 
 on payment of an entrance fee. The public had access 
 also to another portion of the field, also divided by a 
 rope from that part of the field on which the races were 
 run, and forming one side of such field, of the length 
 of about a hundred yards, and about seven yards in 
 depth, on payment of a higher entrance fee. A great 
 number of persons were present at the race meeting 
 within both the reserved portions of the field, the 
 appellant being in the latter. The appellant was seen 
 to receive from, and pay money to, persons with whom 
 he had been heard to make bets. He had no parti- 
 cular location on the reserved space, but during the 
 afternoon freely moved about in the reserved ground. 
 He carried no umbrella, had no box, stool, or satchel, 
 nor any distinctive mark, and did not exhibit his name. 
 The magistrates thought the facts brought the case 
 within Eastwood v. Miller (a), where the occupier was 
 
 (z) Snow v. Hill, 14 Q. B. D. 588 ; 54 L. J. M. 0. 95 ; 52 L. T. 
 859 ; 33 W. E. 475 ; 49 J. P. 440 ; 15 Cox, C. C. 737. 
 (a) Eastwood v. Miller, ante, p. 277.
 
 OFFENCES RELATING TO BETTING HOUSES. 285: 
 
 convicted of an offence in that he kept the whole of 
 
 some inclosed grounds for the purpose of betting. But Conviction 
 
 , ., , , , ,, , Q ,., ,, wrong owing 
 
 on appeal, it was held tnat fcsnow did not keep or use any to absence of 
 place for the purpose of betting with persons resorting fuegaluser. 
 thereto. " He was simply walking about the field, 
 making bets with the other persons who were present, 
 and we do not think that what he did came within the 
 purview of the Act." 
 
 In the case of Reg. v. Preedie (b), Mr. Justice Hawkins # v. Preedie. 
 said : " In all cases it will be found that one essential 
 
 requisite to the constitution of such a place is that it requisite of, 
 
 fixed and 
 
 must be fixed and ascertained. It must, too, be a place ascertained. 
 
 to which, at the time when the offence is charged to 
 
 have been committed, persons were resorting, though 
 
 with what primary object they were so resorting is, in 
 
 my judgment, immaterial ; the Act is silent on that 
 
 point. The temptation to gamble by betting was what Intention of 
 
 the Act was intended to check, and the temptation to 
 
 bet would be equally held out by a professional betting 
 
 man plying his avocation in a crowd of persons assembled 
 
 for the most innocent purpose unconnected with sport, 
 
 as it would be in a crowd gathered together to witness 
 
 the sport of racing. It need not be inclosed within walls 
 
 or fences, or bounded by any defined line. Further- 
 
 more, it may extend over a considerable area even 
 
 acres of ground. Were it otherwise, many racecourses 
 
 might be pointed out upon which a betting man might 
 
 with impunity carry on such operations as the Act 
 
 was intended to suppress. It must not, however, be 
 
 supposed that I intended to say that a place to come 
 
 within the statute may be unlimited in its area ; on 
 
 the contrary, I am of opinion that, though it may be 
 
 (6) JB. v. Preedie, 17 Cox, 0. C. p. 433.
 
 THE LAW OF GAMBLING. 
 
 bounded by no defined line, it must, nevertheless, be 
 limited in extent to the area occupied by the persons 
 congregated together and resorting to it, and to such 
 a space 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 so congregated together. 
 
 The question "Whether that which is charged as a place within sec- 
 
 of place is one t . f . 
 
 of fact. tion 3 satisfied those requirements is a question of fact, 
 
 to be determined by the tribunal before whom the 
 matter comes for adjudication." The learned judge 
 then examines the authorities for the view that the 
 The "spot," "place "must be a fixed particular spot. He admits 
 not adopted, that in the judgments of Lord Coleridge, 0. J., in Sows 
 v. Fenwiclf, and of Grove, J., in Gallaicay v. Maries, 
 expressions are to be found which might be thought to 
 indicate their opinions to be that the word " place " in 
 the statute means some particular ascertained spot just 
 sufficient for a man to stand or sit upon. " I can 
 hardly think," he says, " these learned judges intended 
 by their expressions to lay it down as law that nothing 
 would satisfy the term ' place ' unless it was some par- 
 ticular spot on which a person stood, or which was 
 appropriated by him exclusively for his own use, as 
 a stall, or a standing in a fair or a market would be, or 
 that they meant to convey more than this, that the 
 place must be fixed and ascertained." In support of 
 this view, and against the " spot " construction, he cites 
 the cases of Eastwood v. Miller ; Haigh v. The Toicn 
 Council of Sheffield. 
 
 Conclusion as On the balance of the authorities, the law appears 
 to be that it is not necessary that the locus in quo should 
 be a particular fixed spot of small area, but, as an 
 abstract proposition, any inclosed area might be a 
 "place." In the passages cited above from Ecg. v.
 
 OFFENCES RELATING TO BETTING HOUSES. 
 
 Preedie (c), Mr. Justice Hawkins expresses views which 
 lead to the conclusion that any locus in quo, for the time 
 being occupied by a crowd of changing and indefinite 
 configuration, might be a" place," provided that a betting 
 man there carrying on his business might be said to be 
 doing so in the immediate presence of persons so con- 
 gregated together. The difficulty of the last view 
 arises from the ambiguity of the terms " betting man " 
 aad "his business." If these terms denote a person 
 who by Ms user and practice offends against the Act, 
 then the idea of "place" is not elucidated, for it 
 becomes any locus in quo which may be used in con- 
 travention of the Act. 
 
 The foregoing cases illustrate the practical impossi- "User." 
 bility of dissevering the question of " place " from the 
 question of " user." In the last-mentioned case of Reg. 
 v. Preedie, Mr. Justice Hawkins discusses at length 
 what constitutes a " user " within section 3. The legis- 
 lature did not intend to make all betting illegal. " It 
 is just as lawful now as it ever was for persons to bet 
 together casually at any place, and as often as, and to 
 any extent, they please." But, on the other hand, the 
 mischief to which the Act was directed was expressed 
 by Erie, C. J., in Doggett v. Catterns (d), " The habit of 
 using a particular place by persons skilled in gambling 
 and betting, for the purpose of luring the ignorant and 
 improvident to the ruinous courses to which the vice of 
 gambling too frequently leads." Hence, Hawkins, J., Description of 
 said, " for the purpose of checking that habit, it was by Hawkins, 
 forbidden to any person to use any place for the purpose 
 of systematically carrying on a business of betting with or 
 
 (c) R. v. Preedie, 17 Cox, C. C. 433. 
 
 (d) Doggett v. Catterns, 19 C. B. N. S. 765 ; 34 L. J. 0. P. 159 ; 
 11 Jur. N. S. 243 ; 12 L. T. 355 ; 13 W. E. 390.
 
 288 THE LAW OF GAMBLING. 
 
 receiving deposits from persons resorting thereto. It is 
 not the mere act of betting frequently, or with many 
 persons ; it is the carrying on the business of betting and 
 announcing such business to those assembled and inviting 
 the persons resorting to the place to bet with such 
 Such descrip- bettors which the law was intended to suppress." The 
 sidered. preamble to the Act in part supports this idea of busi- 
 
 ness, and further, the persons who are liable under the 
 Act include any person having the care or manage- 
 ment or in any manner conducting the business. But 
 the Act does not indicate what evidence shallj suffice to 
 establish the carrying on of such a business. A man 
 in an inclosure to which a number of persons are resort- 
 ing makes with such persons a large number of bets ; 
 either this man makes his living by his betting or amuses 
 himself thereby, and in each case his object and desire 
 is the acquisition of gain by speculation. It is difficult 
 to think that the same acts, namely, making the same 
 bets with the same persons could constitute an offence 
 in the case of "the well-known professional betting 
 man," and not in the case of the amateur ; the only 
 possible distinction in the two cases appears to be that 
 the former by his presence in the inclosure might, in 
 the absence of any further overt act, be held impliedly 
 to announce his business and to solicit customers. In 
 the case of Snow v. Hill (<?), the appellant had merely 
 conducted himself as one of the public, walking about 
 making promiscuous bets with those whom he chanced 
 to meet. It was held that he himself was merely one 
 of the persons resorting thereto ; there was no proof that 
 he was a professional bettor at all. But even if he had 
 been a professional bettor, the onus of proving that, on the 
 
 (e) Snow v. Hill, 14 Q. B. D. 588 ; 54 L. J. M. C. 95 ; 52 L. T. 
 859 ; 33 W. B. 475; 49 J. P. 440; 15 Cox, 0. C. 737.
 
 OFFENCES RELATING TO BETTING HOUSES. 
 
 occasion in question he was infringing the Act would 
 lie on the prosecution, and that onus would not be dis- 
 charged in the absence of proof that he was doing more 
 than appeared in the case of Snow v. Hill ( f ). To support 
 a conviction there should be in the case of any man, 
 professional or amateur, proof of some external manifes- 
 tation of the carrying on of a business by announcing 
 it, and by explicit invitation. 
 
 The position, then, of bookmakers, in the view of the Bookmakers 
 law as determined by the Act and the authorities cited 
 supra, is one of much difficulty. The Act does not 
 recognize bookmakers, and there is no definition of the 
 term. The attempt to define would at once reveal the 
 difficulty of distinguishing such a one from the casual 
 bettor; some arbitrary line would have to be drawn. 
 It is certain that a man may make a book, -i.e., enter 
 into a considerable number of wagering contracts on a 
 given event, without committing an offence; for ex- 
 ample, if, being a member of the Albert Club, Limited, 
 he made his book on the club premises with other mem- 
 bers of the club. If, instead of making these same bets 
 on the club premises, he does so in some place such as 
 Tattersall's Eing at Newmarket, could it be said that 
 he would thereby be committing an offence? It is 
 submitted not. Yet the ring is a place, and there is a 
 user for the purpose of making a book with a class 
 of persons resorting thereto, namely, members of the 
 club. If the particular bond of common membership 
 of a club be dissolved, and if that of ordinary social in- 
 timacy be substituted, then, on such facts, A. would use 
 the ring (place) for the purpose of betting (making a 
 number of bets) with that class of persons resorting thereto 
 
 (/) Snow v. Hill, 14 Q. 13. D. 588 ; 54 L. J. M. C. 95; 52 L. 
 T. 859; 33 W. B. 475 ; 49 J. P. 440; 15 Cox, C. C. 737. 
 G. U
 
 290 THE LAW OF GAMBLING. 
 
 who are his friends. It would not seem that A. is com- 
 mitting an offence ; nevertheless he would be using the 
 place for the purpose of betting with some of the persons 
 resorting thereto. The motive of the man who makes 
 the book is, in every case, the desire of gain by specula- 
 tion. No doubt, in neither of the non-criminal instances 
 given above does the maker of the book consider 
 whether those who wager with him are provident or 
 not ; he, chiefly, at any rate, concerns himself with the 
 question whether they can pay, and is guided in the one 
 instance by the fact of membership of the club and in 
 the other by personal friendship. The practical conclu- 
 sion from the above, then, is that a man, say a well- 
 known bookmaker, a member of TattersalFs, can attend 
 a race meeting and make his books amongst his co- 
 members without doing any illegal act ; though ho 
 would be well advised not to receive any deposits in 
 advance for fear lest he should bring himself within 
 the second illegal purpose. But, on the other hand, a man 
 may make a book under circumstances which involve 
 criminal liability. A bookmaker enters the 5s. ring 
 at Newmarket, and more or less obtrusively announces 
 his willingness to make a book on an event with any of 
 the people resorting to such ring who can pay in 
 advance. It would be idle for him to contend that the 
 ring could not possibly be a " place ;" and if the prose- 
 cution proved that the defendant made a large number 
 of bets with a number of the resorters, who offered him 
 deposits, and that he by the name on his satchel induced 
 them so to bet, and offered facilities for so doing, and 
 solicited them on that behalf, he could be properly con- 
 victed on the authorities of the offence of illegally using 
 a place. 
 
 Resorters and Apart from the inseparable questions of place and 
 user, there have been decisions on that element of the
 
 OFFENCES RELATING TO BETTING HOUSES. 291 
 
 user denoted by the word resorting. In the case of 
 R. v. Brown (/) , the defendant was indicted at quarter 
 sessions for using a house for the purpose of betting 
 with persons resorting thereto. The only evidence left 
 to the jury in support of this count was proof of the 
 receipt of a large number of telegrams and letters 
 giving directions as to bets. The Eecorder ruled that 
 the persons, by so sending messages and telegrams, were 
 resorting to the house. But the Court of Crown Cases 
 Reserved was unanimously of opinion that there must 
 be actual physical resorting and haunting, and that a 
 man could not be said to resort to several places at one 
 and the same time. 
 
 The Act, whilst it thus aims at physical resorting, The person 
 further contemplates that not only must there be such contrasted 
 resorters, but there must also be a person using the 
 same for the illegal purpose. In the case of Oldham v. 
 Ramsden (<?), the defendant had employed the plaintiff, 
 a member of a club called the Ellesmere Club, to make 
 bets on his behalf. The plaintiff did so by laying 
 wagers with another member of the club, and, after 
 such wagers had been lost, the plaintiff paid the amount. 
 The defendant refused to recoup him ; hence the action. 
 The defendant, aware of his then liability, if the wager 
 was simply void, pleaded that the plaintiff had know- 
 ingly paid the money, and the same was received by or 
 on behalf of the owner, occupier, or keeper of a place 
 used for the purpose of betting with persons resorting 
 thereto. If the defendant had established this plea, the 
 payment by the plaintiff would have been tainted by 
 illegality. The sole evidence in support of the plea 
 
 (/) R. v. Brown, see ante, p. 237, where the indictment is 
 set out. 
 
 . (</) Oldham v. Ramsden, 44 L. J. C. P. 309; 32 L, T. 825. 
 U2
 
 292 
 
 THE LAW OF GAMBLING. 
 
 Dowries v. 
 Johnson. 
 The Albert 
 Club. 
 
 TheEllesmere wa s : That the Ellesmere Club was a limited company, 
 with 1,400 to 1,500 members ; the club premises were 
 situate in a certain street ; one room in the club was set 
 aside for betting, where members made bets one with 
 the other, though no non-members made bets on the 
 premises. It was held that this evidence showed that 
 the place was a club, an ordinary club at which bets 
 were made. In the course of the argument, the fact 
 was pressed on the Court that a number of bets were 
 made on the premises. Grrove, J., asked how the person 
 using the same was distinguished from the persons re- 
 sorting thereto ? 
 
 In the Albert Club case, which has already been 
 referred to (ti), it was proved : that on the premises 
 there was a club room, which was used exclusively by 
 the members of the club ; that individual members had 
 no prescribed places or pitches in the club room, and 
 that no member could be accurately described as " hold- 
 ing a bag" against all comers; that certain members of 
 the club usually laid odds against horses running in 
 horse races ; that certain of the members backed horses 
 so running, but frequently the respective positions were 
 reversed, when the layers became backers, and vice versa; 
 that there was a tape machine in the club room, inclosed 
 by a rail, within which a servant of the club stood 
 during racing hours, and called out to the members the 
 names of horses running, as they came up on the tape 
 machine, together with the starting prices of the horses, 
 as shown by the machine, and thereupon the members 
 of the club made bets upon horses, either backing or 
 laying odds against them respectively. The respondent 
 to the appeal, on the days mentioned in the information, 
 made numerous bets with members of the club, as shown 
 
 (h) Domies v. Johnson, (1895) 2 Q. B. 203 ; 64 L. J. M. C. 238.
 
 OFFENCES RELATING TO BETTING HOUSES. 293 
 
 by his betting book and eight settling books. On the 
 club premises were obtainable newspapers, time tables, 
 &c., and refreshments ; there was also a billiard table. 
 The attempt was unsuccessfully made to prove that non- 
 members of the club were admitted into the lobby of the 
 club, and that the respondent, on being called out, made 
 bets with them within the lobby. Hence, in this case, 
 there was no distinction between the persons resorting 
 and the owners or occupiers. On behalf of the appel- 
 lant, it was contended that the user by Johnson was a 
 using of the premises for the purpose of carrying on his 
 business of betting- systematically with persons resorting 
 thereto ; if such user was not an offence, then it would 
 follow, it was argued, that in a club of 1,000 members, 
 one member might lay odds with the other 999 every 
 day in the year. Mr. Justice Wright, in the course of 
 the argument, put this case : Twelve friends hire a 
 room one hour a day for the exclusive purpose of betting 
 inter se. Mr. Poland, Q.C., admitted that such user was 
 probably not illegal, and contended that it was a ques- 
 tion of degree, not being illegal unless, in fact, it 
 amounted to the carrying on of a business. It was 
 held that the " resorters " must be strangers, as contra- 
 distinguished from members of the club. Mr. Justice 
 Grantham, after referring to the preamble of the Act, 
 said : " If a person joined a club of this kind manifestly 
 for the purpose of meeting other members, it must be 
 assumed that he knew something about betting, and 
 that he was not one of those imprudent persons aimed 
 at by this statute. It might be that he went to his 
 club to learn something. . . . The members were in the 
 same category, namely, people desirous of finding out betting 
 about betting and horses. Mr. Poland said it was a 
 question of degree. If not illegal for twelve, why for
 
 294 
 
 THE LAW OF GAMBLING. 
 
 Where club a 
 mere disguise. 
 
 Wright v. 
 Clarke. 
 Typical case 
 of alleged 
 business of 
 agent. 
 
 twenty or one hundred ? "Where is the line to be 
 drawn ? It is wholly legal or wholly illegal." Mr. 
 Justice Wright concurred. But he pointed out that the 
 club was a bond fide institution, established some thirty 
 years ; it was not a mere blind for carrying on the trade 
 or business of betting by any proprietor or anyone else ; 
 it was not merely a club into which any solvent person 
 could obtain admission for the purpose of betting. 
 
 On the one hand, then, the principle of the decision 
 of Dowries v. Johnson would apply to TattersalPs, et hoc 
 genus omne ; but on the other, if the club were a mere 
 disguise to enable a man to carry on the business of 
 betting with " resorters," then such a man and the 
 owner or occupier would be within the reservation 
 pointed out by Mr. Justice Wright. 
 
 A good instance of a typical offence against the Act 
 is afforded by the case of Wright v. Clarke (i}. Osten- 
 sibly the business was that of a turf commission agent. 
 Wright advertised freely in the newspapers that he, as 
 agent, would execute commissions on all races at the 
 best price. He desired that business should be con- 
 ducted solely through the post. He stipulated for cash 
 in advance in respect of all commissions. His remune- 
 ration purported to be five per cent, on winnings. His 
 advertisements were answered by the police. Wright 
 acknowledged their instructions, and sent a cheque for 
 the winnings, less commission. A search warrant was 
 obtained, and the documents and books showed that he 
 was carrying on an enormous business. He was charged 
 that he, being the occupier of a certain house and office, 
 to wit, &c., and being a person using the same, did un- 
 lawfully keep and use the same for the purpose of 
 
 (?:) Wright v. Clarke, 34 J. P. 661.
 
 OFFENCES RELATING TO BETTING HOUSES. 295 
 
 receiving money on an undertaking to pay money on 
 contingencies relating to horse racing. He was con- 
 victed, and thereupon appealed. It was argued that 
 no one resorted to the house with whom he made bets, 
 and, in fact, that he never acted as principal : this 
 ground of contention appeared to be valid. But, 
 Blackburn, J., said Wright was responsible for the pay- 
 ment of the bets, and that an implied undertaking 
 would suffice to bring the case within the statute, and 
 on the facts there could be no doubt that the depositors 
 understood that the winnings would be paid by Wright. 
 Hence Wright failed in his contention that the vouchers 
 which he sent on receipt of the deposits did not amount 
 to an undertaking to pay money on a bet, and were no 
 more than advice as to the mode of obtaining payment. 
 
 This case shows that a commission agent who receives Immunity of 
 money in advance will be held criminally liable in 
 
 respect of the implied promise. However, it would rec ^ ve . de- 
 appear that if such a man did not receive deposits in advance. 
 advance, he would not be within the Act. It may seem 
 paradoxical that if he affords temptation to the public 
 to gamble, he may do so provided he encourages them 
 or gives them facilities for cheating him as well. Prac- 
 tically, however, such a proviso stops the promiscuous 
 business. No such practical justification can be alleged 
 in connection with the distinction of resorting physically 
 and of sending messages for the purposes of betting. 
 Commission agents with responsible customers receive 
 instructions by letter or telegram, and execute the same 
 by wagering at their clubs: thus, in fact, under the 
 present condition of the law, the betting of the country 
 is in a large measure conducted. 
 
 In the above case of Wright v. Clarke, the deposits Where the 
 were received on the premises. Obviously, if one -place * lf J
 
 THE LAW OF GAMBLING. 
 
 Bucket shops, 
 whether 
 within the 
 
 Act. 
 
 was used for receiving deposits, proof of that fact would 
 not support a conviction for using another place for 
 that purpose. A bookmaker might be convicted of 
 using a box at a post office for that purpose; but it 
 would be futile to prove that he did so in support of a 
 charge in respect of some other premises. Similarly, it 
 is submitted, if a bookmaker directed his clients to send 
 their deposit to a bank, he could be charged with using 
 a place, to wit, the bank, for the illegal purpose (/) . 
 
 The existence of the places known as bucket-shops, 
 and the common recognition of the fact that in them 
 the unwary and improvident are frequently fleeced, 
 renders the consideration of their legality a matter of 
 some importance. If these places are illegal it is be- 
 cause the same are used for the purpose of betting with 
 persons resorting thereto. In aid of such a charge is 
 the fact that the two illegal purposes are distinct and 
 severable ; and again, such purpose need not be the sole 
 purpose for which the place is used. But the preamble 
 of the Act presents difficulty. It cannot be said that 
 it is clear that such premises so used are not betting- 
 houses within the meaning of the Act. Juries would 
 be entitled to go behind the formal disguise of the 
 transactions, even as in the cases of civil liabilities. 
 
 Many of the charges under this Act have been in 
 respect of the user of licensed premises (&) . But it has 
 been thought more convenient to group those cases 
 together as is done hereafter (/). 
 
 Persons liable. The statute makes the owner or occupier, or person 
 using the place, liable for his own acts. The person 
 
 (/) See post, Davis v. Stephenson, 24 Q. B. D. 529 ; 59 L. J. 
 Q. B. 305 ; 62 L. T. 436 ; 38 W. E. 492. 
 (k) R. v. Preedie, 17 Cox, 0. 0. 433. 
 (?) Chap. XIV. 
 
 Gaming on 
 
 licensed 
 
 premises.
 
 OFFENCES KELATING TO BETTING HOUSES. 297 
 
 who uses the place may be liable if he do so with or 
 without the permission of any owner or occupier. 
 
 Again, liability attaches to a person who has the care Managers, 
 or management of, or in any manner assists in conduct- 
 ing the business. But the business in which the person 
 assists must be the unlawful business. In R. v. Cook (m) 
 the appellant was a manager of bicycle grounds. It 
 was held that as such manager of a lawful business, he 
 could not be liable for assisting, merely because some 
 part of the place was used for an illegal purpose without 
 his assistance or care. " The Act," said Hawkins, J., 
 " was not intended to apply to any person having the 
 care or management of a lawful business who took no 
 share or part in any illegality there." Mr. Justice 
 Smith said the correct reading of the 3rd section was 
 not "any person having the care or management of 
 any place used for betting." " If it were," he con- 
 tinued, " any sweeper of the cricket ground might, as a 
 person assisting in the management of it, be liable if 
 persons made bets there " (n). 
 
 The owners and occupiers are liable for knowingly Owners or 
 and wilfully permitting the illegal user of a place by permitting. 
 any other person. This was the charge in the case of 
 Reg. v. Godfrey and others (the recent Newmarket case] (o). 
 In the first place, it appeared that the prosecution were 
 in some difficulty in proving that the stewards of the 
 Jockey Club (the defendants) were the occupiers; in 
 
 (m) R. v. Cook, 13 Q. B. D. 377 ; 51 L. T. 21 ; 32 W. E. 796 ; 
 48 J. P. 694. 
 
 (n) See also Jenka v. Turpin, 13 Q. B. D. 505; 53 L. J. M. C. 
 161 ; 50 L. T. 808 ; 49 J. P. 20 ; 15 Cox, 0. C. 486 ; Blatter T. 
 Bailey, 37 J. P. 262. 
 
 (o) Full reports are to be found in the "Sportsman" and 
 " Sporting Life," 13th and 18th February, 1895. See ante, 
 p. 234.
 
 THE LAW OF GAMBLING. 
 
 Owner or 
 occupier 
 answerable 
 for conse- 
 quences of 
 las own acts. 
 
 Illegal ad- 
 vertisements. 
 16 & 17 Viet. 
 c. 119, s. 7. 
 Offences. 
 
 fact, the Jockey Club was the occupier and the defen- 
 dants were the managers on behalf of the Jockey 
 Club(j), and, qua such managership (q), would have 
 been within the above decision of R. v. Cook (r) ; if the 
 defendants were occupiers, such occupation arose in 
 virtue of their being members and not stewards of the 
 Jockey Club. But if this point be assumed against the 
 defendants, the prosecution then had to discharge the 
 onus of proving that the stewards as occupiers knowingly 
 and wilfully permitted the illegal user of the place. 
 This the magistrates found as a fact was not done. 
 But non sequitur that another bench of magistrates 
 would not on the same evidence have arrived at the 
 contrary conclusion. In Haigh v. The Town Council of 
 Sheffield (s) , the principle was applied that a man must 
 be taken impliedly to be answerable for what he knows 
 to be the consequence of what he expressly permits. 
 In that case the occupier permitted men who made a 
 business of betting to frequent the inclosure and to stand 
 on stools or chairs in different spots, and to announce 
 their willingness to bet ; that is to say, the occupier had 
 knowledge of these acts and did not prevent the same. 
 
 Section 7 of 16 & 17 Viet. c. 119, was directed 
 against the promotion of betting by means of adver- 
 tisements, and enacted that " any person exhibiting or 
 publishing, or causing to be exhibited or published, any 
 placard, handbill, card, writing, sign, or advertisement, 
 whereby it shall be made to appear that any house, 
 office, room, or place, is opened, kept, or used, for the 
 
 (p) Wood v. LeadMtter, 13 M. & W. 838 ; 14 L. J. Ex. 161. 
 (q} See ante, p. 234. 
 (r) E. v. Cook, ante, pp. 260, 297. 
 
 (s) Haigh v. The Town Council of Sheffield, L. E. 10 Q. B. 102 ; 
 44 L. J. M. C. 17 ; 31 L. T. 536; 23 W. E. 547.
 
 OFFENCES RELATING TO BETTING HOUSES. 299 
 
 purpose of making bets or wagers in manner aforesaid, 
 or for the purpose of exhibiting lists for betting, or 
 with intent to induce any person to resort to such house, 
 office, room, or place, for the purpose of making bets or 
 wagers in manner aforesaid, or any person who, in 
 behalf of the owner or occupier of any such house, 
 office, room, or place, or person using the same, shall 
 invite other persons to resort thereto for the purpose of 
 making bets or wagers in manner aforesaid, shall, upon 
 summary conviction before two justices of the peace, 
 forfeit and pay a sum not exceeding 30/., or be sent to 
 prison for any time not exceeding two calendar months, 
 with or without hard labour. 
 
 It will be seen that, by this section, the pei-sons who What persons 
 are liable are those who " exhibit, or cause to be ex- vertising. 
 hibited, any advertisement, that any house, office, room, 
 or place, is opened, kept, or used : 
 
 1. For the purpose of betting in manner aforesaid ; 
 
 2. For the purpose of exhibiting lists for betting ; 
 
 3. To induce any person to resort thereto for the 
 
 purpose of betting ; 
 
 and also any person who, on behalf of the owner or 
 person using any house, &o., shall invite any person to 
 resort, for the purpose of betting. 
 
 This statute did not apply to Scotland. The result 16 & 17 Viet, 
 was that, as betting houses were not illegal in that tended to" 
 country, the Scotch betting houses were largely adver- ^? la 
 tised in England, and the business of betting was so c. 15. 
 carried on in safety. In 1874, however, the 37 & 38 
 Viet. c. 15 was passed, which extended the provisions 
 of 16 & 17 Viet. e. 119 to Scotland, with some slight 
 procedural exceptions, and further enacted that 
 
 "Where any letter, circular, telegram, placard, hand-
 
 300 
 
 THE LAW OF GAMBLING. 
 
 Advertising 
 information 
 with regard 
 to wagers. 
 
 Racing tips, 
 not illegal to 
 advertise. 
 
 bill, card, or advertisement is sent, exhibited, or pub- 
 lished 
 
 1. Whereby it is made to appear that any person, 
 
 either in the United Kingdom or elsewhere, will, on 
 application, give information or advice for the 
 purpose of or with respect to any such bet or 
 wager, or any such bet or contingency as is 
 mentioned in the principal Act (16 & 17 Viet. 
 c. 119), or will make, on behalf of any other 
 person, any such bet or wager as is mentioned 
 in the principal Act ; or 
 
 2. With intent to induce any person to apply to any 
 
 house, office, room, or place, or to any person, 
 with the view of obtaining information or advice, 
 for the purpose of any such bet or wager, or with 
 respect to any such event or contingency as is 
 mentioned in the principal Act ; or 
 
 3. Inviting any person to make or take any share in 
 
 or in connection with any such bet or wager ; 
 every person sending, exhibiting, or publishing, or 
 causing the same to be sent, exhibited, or published, 
 shall be subject to the penalties provided in the 7th 
 section of the principal Act. 
 
 The 37 & 38 Viet. c. 15 is, however, confined to such 
 bets as are mentioned in 16 & 17 Viet. c. 119. In the 
 case of Cox v. Andrews (), an information was preferred 
 by the respondent Andrews against the appellant Cox, 
 that he did unlawfully publish, or cause to be pub- 
 lished, an advertisement in a newspaper called the 
 " Licensed Victuallers' Gazette and Hotel Courier," 
 whereby it was made to appear that he would, on appli- 
 cation, give information and advice with respect to an 
 
 (*) Cox v. Andrews, 12 Q. B. D. 126 ; 53 L. J. M. 0. 34 ; 32 
 W. E. 289 ; 48 J. P. 247.
 
 OFFENCES RELATING TO BETTING HOUSES. 301 
 
 event or contingency, as mentioned in the 16 & 17 Viet, 
 c. 119. It was proved or admitted that the appellant 
 was the proprietor and publisher of the newspaper, and 
 that he published the number of the newspaper, dated 
 the 31st March, 1883, which contained the following 
 paragraph : " To our readers. Special and important. 
 ' Centaur ' scored his first success of the season when he 
 gave Knight of Burghley for the Lincoln Handicap 
 last Tuesday. Our correspondent will use every effort 
 to follow up his success, and those of our readers who 
 want the most reliable and latest news from Northamp- 
 ton next week should not fail to avail themselves of 
 ' Centaur's ' wire finals, sent direct from the course. 
 They may rely on having something as good for the 
 two principal events next week as they had in Knight 
 of Burghley last Tuesday." The advertisement then 
 stated the prices at which Centaur would supply infor- 
 mation. On behalf of the appellant it was argued that 
 the Betting Act of 1874 was intended to supplement 
 the former Act, with which it is to be read. Both were 
 intended to suppress betting houses or offices. The 
 former Act dealt with bets made in such places, and 
 the latter with advertisements relating to bets which 
 came within the first Act, that is, bets made in a betting 
 house ; that such was not the case here, and that the 
 conviction was therefore wrong. Mathew, J., held : 
 "All the legislation is intended, as I think, to strike at 
 a real mischief. The Betting Act of 1853 was intended 
 to suppress betting houses, and it prohibits the use of 
 ' any house, office, room, or other place,' opened, kept, 
 or used for the purpose of betting, and imposes a 
 penalty on the person who keeps such a house. The 
 Betting Act of 1874 is, by section 1, to be construed as 
 one with the prior Act ; and sub-section 1 of section 3
 
 302 THE LAW OF GAMBLING. 
 
 deals with ' any such, het or wager, or any such event 
 or contingency as is mentioned in the principal Act.' 
 The bets or wagers which are mentioned in the principal 
 Act are hets and wagers made in a house, office, room, 
 or other place kept for the purpose of betting, and these 
 are the bets or wagers intended to be aimed at in the 
 Act of 1874." The conviction was therefore quashed. 
 
 The Court had present to its mind the danger which 
 would be involved in the contrary decision ; the Act 
 might prevent an advertisement giving notice that the 
 secretary of a club was willing to give information on 
 application in respect to a forthcoming race meeting. 
 The principal Act refers to events relating to horse 
 races, &c. ; but it only does so as an element in the 
 carrying out of the second main criminal purpose of 
 keeping a place for receiving money on deposit. In 
 Form No. 9 a description is given of that which, it is 
 submitted, is one of the offences. There is no reported 
 instance in which a person had been convicted for ad- 
 vertising the fact that he kept a place for the purpose 
 of receiving money on deposit, as is mentioned in the 
 Act; though, possibly, he might have been convicted 
 under the principal Act of advertising the keeping of a 
 place for making wagers in that manner, and now could 
 be convicted under the later Act. 
 
 Advertising a There would be no offence in advertising the keeping 
 of a house in a foreign country, where such keeping 
 would not be an offence. 
 
 Section B. Soliciting Infants to Bet. 
 By an Act passed in 1892 (), everyone who for profit 
 invites by any document anyone whom he knows to be 
 an infant to enter into any wagering transaction renders 
 
 () 56 & 56 Viet. c. 4.
 
 WELSHING. 303 
 
 himself liable to imprisonment or fine, or to both im- 
 prisonment and fine, and if the name of anyone appears 
 in such document as the person to whom payment is to 
 be made, or who will give information, such person is 
 to be deemed the sender of the document, unless he can 
 prove that his name has been used without his know- 
 ledge or consent, and becomes liable to imprisonment 
 or fine or both ; and anyone sending such a document 
 to anyone at a university or school is to be deemed to 
 have known that such a person was an infant, unless 
 he can show good grounds that he had reason to believe 
 such person was of full age. Power is given to anyone 
 proceeded against under this Act to be a witness. 
 
 Section C. Welshing. 
 
 A. welsher is one who receives a sum of money or Awelster. 
 other valuable thing on an undertaking to return the 
 same or the value thereof, together with other money, 
 if an event (for example, the result of a horse race) 
 shall be determined in a certain manner, and at the 
 time of receiving the deposit intends to cheat and 
 defraud the depositor. 
 
 The existence of this fraudulent intent at the time Property does 
 of receiving the deposit would prevent the transfer of 
 any property in the subject-matter of the deposit ; for 
 "a parting with the property in goods can only be 
 effected by contract, which requires the assent of two 
 minds " (#). In Reg. v. Buckmaster (y), Lord Cole- 
 ridge, C. J., pointed out that if the depositor intended 
 
 (a;) 2 Russell on Crimes, 170, 5th. ed., cited in B. v. Walsh, 4 
 Taunt, at p. 274 ; 2 Lea, C. C. pp. 1072, 1073. 
 
 (y) Reg. v. Buckmaster, 20 Q. B. D. 182 ; 57 L. J. M. C. 25 ; 
 57 L. T. 720 ; 36 W. E. 701 ; 52 J. P. 358 ; 16 Cox, C. C. 339.
 
 304 THE LAW OF GAMBLING. 
 
 to part with his money, it was only on terms which 
 were not the same as those whereunder the prisoner 
 intended to receive. In the same judgment it is stated 
 that a second view was that the prosecutor never in- 
 tended to pass the property, seeing that he was to have 
 his money back in a certain event ; his intention was 
 solely to part with the possession. Given such limited 
 intention on the part of the prosecutor, and a concurrent 
 intention to steal in the mind of the person who obtains 
 the possession, then there is evidence of larceny. 
 Larceny. ^he crime is larceny at common law. If the pro- 
 
 perty had in fact passed in the subject of the deposit, 
 the charge would have been that of obtaining goods by 
 false pretences.
 
 ( 305 ) 
 
 CHAPTER XIV. 
 
 Section A. Gaming on Licensed Premises. 
 Section B. Betting in Public Places. 
 
 Section A. Gaming on Licensed Premises. 
 
 IN the Betting House Act, the offence on the part of 
 the owner or occupier of a place, of knowingly and 
 wilfully permitting the same to be used for either of 
 the therein forbidden purposes, is created. Under the 
 Intoxicating Liquor (Licensing) Act (35 & 36 Viet. 
 c. 94), there is a group of sections headed " Offences 
 against Public Order," and section 17 included therein 
 is in terms as follows : 
 " If any licensed person 
 " (1) Suffers any gaming (a) or unlawful game to be 
 
 carried on on his premises ; or 
 
 " (2) Opens, keeps, or uses, or suffers his house to be 
 opened, kept, or used in contravention of the 
 Act of the session of the sixteenth and seven- 
 teenth years of the reign of Her present 
 Majesty, chapter one hundred and nineteen, 
 intituled 'An Act for the suppression of bet- 
 ting houses,' 
 
 he shall be liable to a penalty not exceeding for the 
 first offence ten pounds, and not exceeding for the 
 second and any subsequent offence twenty pounds." 
 
 (a) See Chap. II. p. 39. 
 G. X
 
 306 THE LAW OF GAMBLING. 
 
 By section 16, sub-sect. 3, it was further provided 
 that any conviction for an offence under this section 
 shall, unless the convicting magistrates shall otherwise 
 direct, be recorded on the licence of the person convicted ; 
 but this provision has been repealed by section 13 of 
 the Licensing Act, 1874, whereunder the justices may 
 order the conviction to be recorded on the licence. 
 
 Sect. 17 This section is thus supplementary to the provisions 
 
 supplemental . 
 
 to the Betting ot the general Acts. As was held in the case of Sims 
 
 se c . nav i n g regard to section 59 (c) of the statute, 
 
 its 17th section could not be taken to have repealed, 
 quoad licensed victuallers, the provisions of the Betting 
 House Act. The Licensing Act then extends the 
 general Act on the offence of suffering or permitting 
 gaming. 
 
 The question The question to be considered is, whether the above- 
 quoted section imposes an absolute liability or a qualified 
 liability on a licensed person. If qualified only, then 
 the extent of the qualification remains for determina- 
 tion. 
 
 Construction The licensed person must suffer the acts forbidden. 
 Primd facie, the word " suffer " implies feeling, from 
 which it is only a step to knowledge. But it has been 
 pointed out that in section 17 the word " knowingly " 
 is omitted, whereas it is inserted in other sections of 
 the same group, namely, in section 14 and section 16, 
 sub-section (1). Manisty, J., considered that the omis- 
 sion points to an absolute prohibition (d), but Mathew 
 
 (6) Sims v. Pay, 58 L. J. M. 0. 39 ; 60 L. T. 602; 16 Cox, C. 
 C. 609 ; 53 J. P. 420. 
 
 (c) Nothing in this Act shall prevent any person from being 
 liable to be indicted or punished under any other Act, or other- 
 wise, so that he be not punished twice for the same offence. 
 
 (d) Bond v. Evans, 21 Q. B. D. 249; 57 L. J. M. C. 105; 59
 
 GAMING ON LICENSED PREMISES. 307 
 
 and Collins, JJ., have since held that the word " know- 
 ingly," in section 14, only applies to the class of 
 persons who are permitted to resort to the premises. 
 Similarly in section 16 (e). The fact that the word 
 "knowingly " was contained in the corresponding sec- 
 tion of the repealed Act (4 Geo. IV. c. 61, sched. 0.) 
 does not point to any definite conclusion. In Somerset 
 v. Wade it is pointed out that the word " suffers " is 
 not distinguishable from " permits." The statute, 
 then, is not in favour of the absolute liability which 
 might have been imposed by saying that " If a licensed 
 person does not prevent, then, &c." The authorities, 
 it will be seen, support the view of qualified liability, 
 and illustrate the extent of the qualification. 
 
 In the case of Bosley v. Davies (/), an hotel keeper Authorities 
 had been convicted by the magistrates of suffering So!jle 
 gaming, on evidence which failed to disclose actual -Davits. 
 knowledge or constructive knowledge on his part or on 
 the part of his servants. The facts were A police 
 constable, about 12.30 P.M., being in the street outside 
 the premises, looked into a room and saw sufficiently to 
 lead him to enter the house ; he found six men play- 
 ing cards at a table on which there was a quantity of 
 money. The players were visitors at the hotel and 
 were in their private room. The cards belonged to 
 them. The manageress had no knowledge of the play- 
 ing, and no servant had entered the room during the 
 play. On such facts, the case was sent back to the 
 
 L. T. 411 ; 52 J. P. 612 ; 36 W. E. 767 ; 4 T. L. E. 614 ; 16 Cox, 
 C. C. 461. 
 
 (e) Somerset v. Wade, (1894) 1 Q. B. 574 ; 63 L. J. M. C. 126; 
 10 E. 105; 70 L. T. 452; 10 T. L. E. 313; 58 J. P. 231; 42 
 W. E. 399. 
 
 (/) Ilosley v. Davies, 1 Q. B. D. 84; 45 L. J. M. C. 27; 33 
 L. T. 528 ; 24 W. E. 140 ; 40 J. P. 550. 
 
 x2
 
 308 THE LAW OF GAMBLING. 
 
 justices " with an intimation of the opinion of the Court 
 that actual knowledge, in the sense of seeing or hearing by 
 the party charged, is not necessary, but that there must 
 be some circumstances from which it may be inferred 
 that he or his servants had connived at what was going 
 on. Constructive knowledge will supply the place of 
 actual knowledge." Hence this case is an express deci- 
 sion that the liability is not absolute. 
 
 Responsi- The next case illustrates the facts which may suffice 
 
 servants. to afflict the holder of the licence with constructive 
 knowledge. In Redgate v. Haynes (g}, the appellant 
 was convicted for suffering gaming on her licensed pre- 
 mises. It was proved by witnesses that whilst standing 
 in the public street of Epsom, between half-past one 
 and a quarter to two in the morning, they could hear 
 from the conversation of three persons in a room that 
 they were playing for money. There was no direct 
 evidence that the appellant knew of the gaming : she 
 stated that the house was closed at 11 P.M., and that 
 the three persons who were staying in the house were 
 in their private room, and that she neither saw nor 
 supplied any cards, and did not know of any playing. 
 The hall porter closed the house and retired to his own 
 chair in a parlour at the extreme end of the house. He 
 said that he knew nothing whatever of the gambling. 
 The justices, however, drew an inference from the 
 porter's evidence that his chair was removed to the 
 greatest possible distance from the guest's room in order 
 not to hear what passed ; they thought that the appellant 
 knew that gaming was intended to be carried on, and 
 that she purposely took pains not to know what her 
 guests were doing. On such grounds they convicted 
 
 (g) Bedgate v. Haynes, ] Q. B. D. 89; 45 L. J. M. 0. 65; 33 
 L. T. 779 ; 41 J. P. 86.
 
 GAMING ON LICENSED PREMISES. 309 
 
 her, and the conviction was affirmed. It was held that 
 she was responsible for the hall porter, and that there 
 was evidence that he suspected and connived, and that 
 this evidence justified the conviction. Lush, J., said, 
 " I agree that it is not necessary that actual knowledge 
 of the gaming should be proved. Section 17 says that 
 the owner of licensed premises who ' suffers ' gaming 
 shall be liable to a penalty. And I think that conniv- 
 ance on the part of the landlady or person in charge 
 would be quite sufficient." Blackburn, J., also said, 
 " I agree that the mere fact that gaming was carried 
 on on her premises would not render her liable to be 
 convicted, because that is not ' suffering ' the gaming to 
 be carried on, and if the justices were of a different 
 opinion they were wrong ; but I think if she purposely 
 abstained from ascertaining whether gaming was going 
 on or not, or, in other words, connived at it, this would 
 be enough to make her liable ; and I think that where 
 the landlady goes to bed she is still answerable for the 
 conduct of those whom she leaves in charge of the house, 
 and if these persons connive at the gaming she is 
 responsible" (A). 
 
 The case of Crabtree v. Hole (i) is on all fours with 
 the last-mentioned one ; the holder's vicarial responsi- 
 bility was again enforced. The holder of the licence 
 employed a manager to live on the premises. The 
 manager went to bed leaving " boots " to attend to the 
 house. The justices found that "boots" knew of the 
 gaming, but shut his eyes. It was held that " The 
 duty imposed by the enactment is to take reasonable 
 care that gaming is not suffered on the premises, and if 
 
 (h) See also Muffins v. Collins, L. E. 9 Q. B. 292 ; 43 L. J. M. 
 C. 67 ; 29 L. T. 838 ; 22 W. K. 297 ; 38 J. P. 629. 
 (i) Crabtree v. Hole, 43 J. P. 799.
 
 310 THE LAW OF GAMBLING. 
 
 the licensed holder employs one who does not do his 
 duty, it is the same as if he himself did not do his duty. 
 Here 'boots' did not take reasonable care, and the 
 licensed person must be found guilty." 
 Somerset v. The case of Somerset v. Hart (k) shows, however, that 
 
 this responsibility does not attach in respect of the non- 
 Knowledge of 
 
 potman. interference of one to whom no authority has been dele- 
 
 In an alehouse, which was much frequented on market 
 days, several people were present in one of the rooms 
 and were waited upon by a potman in the service of 
 Hart. Divers acts of gambling took place, of which 
 the potman saw some, but he neither interfered nor 
 told his employer. There was no evidence to show that 
 Hart knew anything about the gaming. Lord Cole- 
 ridge, C. J., said, " Here the magistrates find that there 
 was no evidence that Hart had any actual knowledge of 
 the gaming, or that the potman ever communicated 
 with him on the subject, or that Hart had himself 
 wilfully shut his eyes to what was going on. . . . Slight 
 evidence might be sufficient to satisfy the magistrates 
 that the landlord might have known what was taking 
 place if he had pleased ; but where no actual knowledge 
 is shown, there must, as it seems to me, be something 
 to show either that the gaming took place with the 
 knowledge of some person clothed with the landlord's 
 authority, or that there was something like connivance 
 on his part that he might have known, but purposely 
 abstained from knowing " (/). Hence it was held that 
 
 (&) Somerset v. Hart, 12 Q. B. D. 360; 53 L. J. M. 0. 77 ; 48 
 J. P. 327 ; 32 W. B. 594. 
 
 (Z) See comments of Manisty, J., in Bond v. Evans, 21 Q. B. 
 D. at pp. 254, 255, and of Collins, J., in Somerset v. Wade, (1894) 
 1 Q. B. at pp. 577, 578.
 
 GAMING ON LICENSED PREMISES. 311 
 
 the magistrates were right in refusing to convict on 
 such evidence. 
 
 The case of Bond v. Evans (m) presents some diffi- Bond v. Evans. 
 culty, not on account of its decision, but owing to some 
 obiter dicta. In this case, the appellant, a licensed 
 victualler, had been convicted for suffering gaming to 
 be carried on on his premises. The evidence showed 
 that the appellant had employed a man to manage a 
 skittle-alley, which was attached to his premises, and 
 had given him general directions not to permit gambling. 
 Nevertheless, the man allowed card playing for money to 
 take place in his presence in the alley. It was admitted 
 that the appellant was not present, and had no actual 
 knowledge of the card playing, and that the man had 
 never communicated with him on the subject, but the 
 conviction was upheld. 
 
 The decision clearly was, that the holder of the 
 licence was properly convicted in respect of the non- 
 interference by a man to whom he had delegated his 
 authority. Manisty, J., after examining in detail the Obiter dicta of 
 sections of the group of offences against public order, Stephen, JJ. 
 said, after referring to the case of Cundy v. Le Cocq (n), 
 wherein it had been decided that the Act imposed an 
 absolute liability against the sale of liquor to a drunken 
 person, " In my opinion the principle of that decision 
 is applicable to the present case, for I think it was in- 
 tended by sect. 17 absolutely to prohibit gaming on 
 licensed premises, and that the substantial effect is that 
 responsibility is thrown upon any person who keeps a 
 
 (TO) Bond v. Evans, 21 Q. B. D. 249 ; 57 L. J. M. 0. 105 ; 59 
 L. T. 411 ; 52 J. P. 612 ; 36 W. E. 767 ; 4 T. L. E. 614 ; 16 Cox, 
 C. C. 461. 
 
 (n) Cundy v. Le Cocq, 13 Q. B. D. 207 ; 53 L. J. M. C. 125 ; 
 51 L. T. 265 ; 32 W. E. 769 ; 48 J. P. 599.
 
 312 THE LAW OF GAMBLING. 
 
 licensed house to take proper precautions to prevent all 
 gaming on his premises." Stephen, J., also said, " I 
 think the meaning is, that the landlord must prevent 
 that which the Act prohibits from being done on his 
 premises, and if he does not prevent it, so much the 
 worse for him." If these dicta go the length of mean- 
 ing that proof of the fact of gaming under any circum- 
 stances establishes that proper precautions (meaning 
 such as rebut criminal liability) have not been taken, 
 then, it is submitted, the same are inconsistent with the 
 foregoing cases. Again, in answer to Stephen, J., it 
 may be said that the Act does not prevent gaming on 
 licensed premises, but only the suffering of gaming 
 therein. 
 
 However, in the recent case of Somerset v. Wade (o), 
 the earlier case of Somerset v. Hart was approved, and 
 the case of Bond v. Evans (p) was explained. The 
 offence alleged in Somerset v. Wade was permitting 
 drunkenness; there was a drunken female on the 
 licensed premises, but the respondent Wade did not 
 know that she was drunk. Mathew, J., commenting 
 on Somerset v. Hart, said, " It comes to this, that a 
 licensed person cannot be convicted of suffering gaming, 
 in the absence of knowledge, or connivance, or careless- 
 ness on his part." Collins, J., concurred. Of course, 
 the licensed holder can connive or be careless in the 
 person of those to whom he has delegated his authority. 
 Conclusion. Thus, then, the liability imposed is not absolute. 
 The foregoing cases will serve to illustrate to what 
 extent it is qualified. 
 
 (o) Somerset v. Wade, (1894) 1 Q. B. 574 ; 63 L. J. M. 0. 126; 
 10 E. 105; 70 L. T. 452; 10 T. L. E. 313; 58 J. P. 231; 42 
 W. E. 399. 
 
 (p) Bond v. Evans, ante, p. 311.
 
 GAMING ON LICENSED PREMISES. 313 
 
 But given actual knowledge on the part of the licensed Innkeeper 
 
 . . . i IIP!. i , i ma y not 
 
 person, it is seemingly impossible for him to withstand w i t h private 
 
 a charge under section 17. Thus, he may not even fl 
 play any game for money with his personal friends as 
 distinguished from customers. In the case of Patten v. 
 Rhymer (<?), an innkeeper invited some friends to come 
 as his guests and play cards, which they did after pro- 
 hibited hours. They were in the habit of visiting each 
 other's houses and playing for small stakes. They 
 accepted the invitation and played in a private room. 
 The innkeeper, however, was convicted. Wightman, J., 
 said, " It appears that the licence makes it a condition 
 that the innkeeper shall not knowingly suffer any un- 
 lawful games, nor any gaming whatsoever, in his house 
 words quite wide enough to include the present case. 
 The appellant may have acted bond fide, and there may 
 have been no improper gambling. He may have in- 
 vited some of his private friends, and they may only 
 have been playing a friendly game of cards for a small 
 stake. But he has permitted playing cards for money, 
 and that is gaming on his licensed premises, and the 
 case comes within the letter of the licence, and it may 
 well be that it was intended to forbid all playing at 
 cards for money in order to prevent an evasion of the 
 licence, as it would be exceedingly easy, under pretence 
 of a lawful game at cards with pretended friends of .the 
 landlord, to introduce and cloak unlawful gaming." 
 
 By the 30th section of the Act of 1874 (37 & 38 
 Viet. c. 49), a licensed person was allowed to supply 
 intoxicating liquors after the hours of closing, to private 
 friends bond, fide entertained by him, at his own expense ; 
 
 (q) Patten v. Rhymer, 3 El. & El. 1 ; 29 L. J. M. C. 189 ; 6 
 Jur. 1030 ; 2 L. T. 352 ; 8 W. B. 496; 24 J. P. 342.
 
 314 THE LAW OF GAMBLING. 
 
 and in the case of Hare v. Osborne (r), it was contended 
 that this would also apply to gaming. Hare, the 
 licensed person, after the hours of closing, entertained 
 some private friends at his own expense. These friends, 
 in his company, played cards for money. Hare was 
 convicted, and on appeal, Grrove, J., held " the appellant 
 is admitted to be a licensed person, and it is also 
 admitted that he, in the words of section 17 of the 
 Act of 1872, suffered gaming to be carried on on his 
 premises, the exemption in section 30 of the Act of 
 1874 as to the entertainment of private friends by 
 supplying intoxicating liquors at the landlord's own 
 expense, has nothing whatever to do with playing cards 
 for money." But the private friends who are enter- 
 tained, as in the last case, cannot be summoned for 
 being unlawfully in the house aiding in gaming (s). 
 A licensed person will equally incur liability if the 
 play be not for money, but for any equivalent of money. 
 In Danford v. Taylor (t), four persons, including the 
 licensed beer seller, played on the licensed premises 
 twenty or thirty games at ten-pins for a pint of beer 
 each game ; the beer was supplied as it was won, and 
 was drunk by all the players though paid for only by 
 the losers. It was held that the licensed beer seller 
 had been rightly convicted of an offence against his 
 licence, seeing that it was a condition thereof that he 
 should not knowingly suffer any unlawful games or 
 any gaming whatsoever on his licensed premises. Again, 
 in Bew v. Harston (u), where the licensed person suffered 
 
 (r) Hare v. Osborne, 34 L. T. 294. 
 (s) Cooper v. Osborne, 35 L. T. 347 ; 40 J. P. 759. 
 (t) Danford v. Taylor, 20 L. T. 483 ; 33 J. P. 612. 
 (u} Bew v. Harston, 3 Q. B. D. 454 ; 47 L. J. M. 0. 121 ; 39 
 L. T. 233 ; 26 W. E. 915 ; 42 J. P. 808.
 
 GAMING ON LICENSED PREMISES. 315 
 
 to be played on his premises a game called puff and 
 dart, the object of which was to hit a mark with a dart 
 blown through a tube, the players each contributing 
 twopence as entrance money, which was applied for the 
 purchase of a rabbit as a prize for the winner of the 
 game. Mellor, J., said, " Here money was not in one 
 sense staked on the game, but each man paid his two- 
 pence for the chance of winning the rabbit. It comes 
 to the same thing in principle. I think it was gaming 
 within the meaning of the Act, which seems to me to 
 have been intended to prevent the contracting of bad 
 habits by the practice of such games in public houses." 
 
 A right of appeal is conferred by section 52 of the Appeal. 
 Licensing Act, 1872 : " If a person feels aggrieved by 
 any order or conviction made by a court of summary 
 jurisdiction, the person so aggrieved may appeal there- 
 from." The conditions of the appeal are now regulated 
 by the Summary Jurisdiction Act, 1879, sections 31 and 
 32, as affected by the Summary Jurisdiction Act, 1884. 
 In regard to the offences, supra, the licensed person, Owner not a 
 who has been convicted, is alone the person aggrieved, aggrieved, 
 even though the conviction may have been recorded on 
 the licence. The fact that the owner may, in conse- 
 quence of the conviction, and the indorsement of the 
 licence, suffer pecuniary loss, does not give him a locus 
 Ht'tmli for an appeal (x). But the legislature, by sec- 
 tion 56 of the same Act, has provided protection for the 
 owner, by requiring that certain notices shall be served 
 on him, which will enable him to take steps to prevent the 
 premises from becoming disqualified if he can satisfy 
 the provisions of that section. 
 
 These games, billiards and bagatelle, are perfectly Billiards and 
 
 bagatelle. 
 
 (x) R. v. Andover JJ., 16 Q. B. D. 711 ; 55 L. J. M. 0. 143 ; 
 55 L. T. 33 ; 2 T. L. E. 546 ; 50 J. P. 549 ; 34 W. E. 456.
 
 316 THE LAW OF GAMBLING. 
 
 lawful (y) ; but restrictions have been placed on the keep- 
 ing of public places for the purposes of playing thereat. 
 In Chapter VII. , the sections of the statute 8 & 9 Viet. 
 c. 109, which regulate the licensing of such places for the 
 purpose, were mentioned, but not otherwise dealt with. 
 Power to Section 10 of the statute gives the "justices at the 
 
 license public . , 
 
 places. annual general licensing meeting authority to grant 
 
 licences to persons to keep public billiard tables or 
 bagatelle boards, or instruments used in any game of 
 the like kind, such licence to cost in all the sum of six 
 
 Licence shillings, and to continue in force for one year. Sec- 
 
 tion 11 requires that a licence shall be taken out for 
 every house, room, or place kept for public billiard 
 playing, or where a public billiard table or bagatelle 
 board, or instrument used in any game of the like kind, 
 is kept, at which persons are admitted to play, and 
 requires that the words, " Licensed for billiards," shall 
 be put up in some conspicuous place near the door on 
 
 Innkeepers ^he ou t s ide. People holding victuallers' licences under 
 
 do not require 
 
 licence. 9 Greo. IV. c. 61, are exempted from the necessity of 
 
 procuring the above licence. 
 
 Restrictions But, by section 13 of 8 & 9 Viet. c. 109, everyone 
 play. " keeping such public table is prohibited from allowing 
 
 play to take place after one and before eight o'clock in 
 the morning, and on Sundays, Christmas Day, and Good 
 Friday, or any day appointed to be kept as a public 
 fast or thanksgiving, and persons holding victuallers' 
 licences are only to permit play during such times as 
 they are allowed to keep open for the sale of liquors. 
 Residents By 37 & 38 Viet. c. 49, s. 10, the powers of licensed 
 
 Miiards after victuallers were expressly extended to allow them at all 
 ti mes ^ se ^ intoxicating liquors to persons residing in 
 
 supplied with their houses ; but, curiously, no mention is made as to 
 
 drink. 
 
 (y} Parsons v. Alexander, 24 L. J. Q. B. 277 ; 1 Jur. N. S. 660 ; 
 5 E. & B. 263.
 
 GAMING ON LICENSED PEEMISES. 317 
 
 billiard or bagatelle playing. In the case of Ovenden v. 
 Raymond (s), the appellant Ovenden was charged with 
 allowing billiards to be played after the prohibited 
 hours. It was contended on his behalf that, as the 
 players were lodgers, within the meaning of section 10 
 of the Act of 1874 (37 & 38 Yict. c. 49), and as that 
 Act allowed a licensed victualler to sell intoxicating 
 liquor to lodgers after prohibited hours of closing, he 
 was justified in allowing them to play billiards. But 
 the Court, consisting of Bramwell, B., and Grove, J., 
 held : " We think that this point is not arguable, and 
 that the appellant is clearly wrong. No doubt it is a 
 casus omissus in the statute, and a great anomaly ; but 
 it is clear that the section 10 of the Act of 1874 does 
 not tend to exempt persons playing billiards after the 
 closing hours, though they may be able to obtain a 
 drink after those hours." 
 
 No appeal lies in respect of a refusal by the justices Appeal, 
 to grant such a billiard licence (a). In respect of con- 
 victions for contravention of the foregoing provisions, a 
 right of appeal is conferred by section 20 of the statute 
 8 & 9 Viet. c. 109. The section is in terms similar to 
 the corresponding sections of the Betting and Gaming 
 House Acts ; the informant and the witnesses are to be 
 bound over, and expenses allowed, such expenses to be 
 repaid by the appellant if the appeal be dismissed. 
 
 Section B. Betting in Public Places. 
 
 By the Metropolitan Streets Act, 30 & 31 Viot. o. 134, Metropolitan 
 B. 23, any three or more persons assembled together in betting in. 
 
 (z) Ovenden v. Raymvnd, 34 L. T. 698 ; 40 J. P. 727. 
 (a) R. v. Devonshire JJ., 21 J. P. 773; 8. C., nom. Ex parte 
 Chamberlain, 8 E. & B. 644.
 
 318 THE LAW OF GAMBLING. 
 
 any part of a street within the metropolis for the pur- 
 pose of betting, are to be deemed to be obstructing the 
 street, and each of such persons is liable to a penalty 
 not exceeding 5/. Power is also given to constables to 
 take into custody without warrant any person who may 
 commit such offence in view of such constable. 
 Gaming in In 1873, an Act was passed to amend the Vagrants 
 
 places. Act, 5 G" eo - IV. c. 83, and to repeal the Vagrants Act 
 
 Amendment Act of 1868, and, by section 3 thereof, the 
 provisions of the first-mentioned Act were extended so 
 that every person playing or betting by way of wager- 
 ing or gaming in any street, road, highway or other 
 open and public place, or in any open place to which 
 the public have or are permitted to have access, at or 
 with any table or instrument of gaming, or any coin, 
 card, token or other article used as an instrument or 
 means of such wagering or gaming at any game or 
 pretended game of chance (6), shall be deemed a rogue 
 and a vagabond, and may be convicted and punished 
 under the provisions of 5 Greo. IV. c. 83, or in the dis- 
 cretion of the justice or justices trying the case in lieu 
 of such punishment by a penalty for the first offence 
 not exceeding 21., and for the second or any subsequent 
 offence not exceeding 5L 
 
 Cases of street betting are continually coming before 
 the metropolitan police magistrates, and on conviction 
 the maximum penalty of 51. seems to be almost invari- 
 ably imposed. 
 
 (&) For game of chance, see Jenks v. Turpin, 13 Q. B. D. 505 ; 
 53 L. J. M. C. 161 ; 50 L. T. 808; 49 J. P. 20 ; 15 Cox, 0. C. 
 486 ; Dyson v. Mason, 22 Q. B. D. 351 ; 58 L. J. M. C. 55 ; 
 60 L. T. 265; 53 J. P. 262 ; Tollett v. Thomas, L. E. 6 Q. B. 
 514 ; 40 L. J. M. 0. 209 ; 19 W. E. 246 ; 24 L. T. 508 ; Fairtlough 
 v. Whitmore, 64 L. J. Ch. 386 ; W. N. (1895) 52.
 
 ( 319 ) 
 
 CHAPTER XV. 
 
 LOTTERIES AND GAMES OF CHANCE. 
 
 IN Chapter IV. an account was given of the series of statutes impos- 
 ing criminal liability in respect of lotteries and games of chance; 
 the object of that chapter was to afford a foundation for the conside- 
 ration of civil obligations connected with illegal gambling. In this 
 chapter the various offences will be set out in the form of a Schedule. 
 
 Offence. Penalty. 
 
 [1699] I. 10 & 11 Will. III. c. 17 (see p. 62). 
 
 [After preamble, see p. 63.] 
 
 Lotteries declared nuisances.] All such lotteries, The keeper is indictable for a mis- 
 
 and all other lotteries, are common and public demeanor, although the other sec- 
 nuisances, tions impose specific penalties (a). 
 
 Prohibition of keeping lottery.'] Sect. 2. No 
 person shall publicly or privately exercise, keep, 
 open, show, or expose to be played at, drawn at, 
 or thrown at, or shall draw, play, or throw at 
 any such lottery, either by dice, lots, cards, balls, 
 or any other numbers or figures, or any other way 
 whatsoever. 
 
 Penally on playing at such lotteries."] Sect. 3. 
 Every person who shall play, throw, or draw 
 at any such lottery, play, or device, or other 
 lotteries, 
 
 For every such offence the person 
 shall forfeit 500 ; one-third to the 
 Crown, one-third to poor of parish, 
 one-third to informer ; and the per- 
 son so offending shall be prose- 
 cuted as a common rogue. 
 
 Shall 
 
 Forfeit the sum of 20 ; applica- 
 tion as in offence under sect. 2. 
 
 [1710] II. 9 Anne, c. 6 (see page 63). 
 
 Person advertising ,~\ Every person who shall Shall 
 
 by writing or printing publish the setting up any Forfeit for every such offence 
 
 such unlawful lottery, with intent to have such 100 ; application as in the pre- 
 lottery drawn, viously mentioned offences. 
 
 (a) R. v. Crawshaw, 1 Bell, C. C. 303.
 
 320 
 
 THE LAW OF GAMBLING. 
 
 Offence. 
 [1711] III. 10 Anne, c. 26 (see page 64). 
 
 Setting up offices for improvement of small sums 
 of money under divers denominations.] Sect. 108. 
 Every person who shall erect, set up, or keep 
 any office or place under the denominations of 
 sale of gloves, of fans, of cards, of numbers, of 
 the Queen's picture, for the improvement of 
 small sums of money, or the like offices or places 
 under the pretence of improving small sums of 
 money, 
 
 Advertising such offices.] Every printer or per- 
 son who shall by writing or printing publish the 
 setting up or keeping any such office or place, 
 under any of the denominations aforesaid, or 
 like denominations for the improvement of small 
 sums of money, 
 
 Penalty. 
 
 Shall 
 
 Forfeit for every such offence 
 500. 
 
 Shall 
 
 Forfeit for every such offence 
 100. 
 
 [1718] IV. 5 Geo. I. c. 10 (see page 64). 
 
 Sect. 43. An offence arising out of the exist- 
 ence of public lotteries. 
 
 [1721] 
 
 V. 8 Geo. I. c. 2 (see page 65). 
 
 The like offices under divers other denomina- 
 tions.] Sect. 36. Every person who shall erect, 
 set up, continue, and keep, or shall cause to be 
 erected, set up, continued and kept, any office or 
 place under the denominations of sales of houses, 
 lands, advowsons, presentations to livings, plate, 
 jewels, ships, goods, or other things for the im- 
 provement of small sums of money : 
 
 Sale of houses, $n. by lot.~\ Or shall sell or ex- 
 pose for sale any houses, &c. by way of lottery 
 or lots, tickets, numbers, or figures : 
 
 Advertising.] Or shall make, print, or publish, 
 or cause to be made, printed, or published, any 
 proposal or scheme of the like nature and kind 
 whatsoever, under any denomination or title 
 whatsoever : 
 
 Contributing."] Sect. 37. Any person contribut- 
 ing to the sales, &c. 
 
 Shall 
 
 Be liable to forfeit for every such 
 offence 500 over and above any 
 penalties inflicted by former Acts. 
 
 Shall 
 
 Be liable to forfeit for every such 
 offence twice the sum contributed.
 
 THE LOTTERY ACTS, OFFENCES. 321 
 
 Offence. Penalty. 
 
 [1722] VI. 9 Geo. I. c. 19 (see page 65). 
 
 Prevention of foreign lotteries in the 'kingdom : 
 i. Setting up.~\ Sect. 4. Any person who shall, 
 by virtue or colour of any grant or authority 
 from any foreign prince, state, or government 
 whatsoever, erect, set up, continue, or keep, or 
 shall cause or procure to be erected, set up, con- 
 tinued, or kept, any lottery or undertaking in 
 the nature of a lottery under any denomination 
 whatsoever : 
 
 ii. Advertising .] Or who shall make, print, or 
 publish, or cause to be made, printed, or pub- 
 lished, any proposal or scheme for any such ,>, 
 
 lottery or undertaking: %e ^^ to forfdt 20Q oyer 
 
 iii. Sale of tickets.'] Or who shall within this and above any penalties inflicted by 
 kingdom sell or dispose of any ticket or tickets former Acts against unlawful lot- 
 in any foreign lottery : teries. Application as under I. (b). 
 
 [1733] VII. 6 Geo. II. c. 35. 
 
 The last statute supplemented : i. Sale of a ticket 
 in a foreign lottery. ~\ Sect. 29. Any person who 
 shall sell, procure, or deliver any ticket, receipt, 
 chance, or number in or belonging to any foreign 
 lottery, or pretended foreign lottery, or in or 
 belonging to any class, part or division of such 
 lottery, or pretended lottery, or in or belonging 
 to any undertaking whatsoever in the nature of 
 a lottery : 
 
 ii. Sale of a ticket in a duplicate of a foreign 
 lottery."] Or who shall sell, procure, or deliver, 
 any ticket, receipt, chance, or number in or 
 belonging to any duplicate, or pretended dupli- 
 cate of any foreign lottery, or pretended foreign 
 lottery : 
 
 iii. Receipt of money on such contingencies.'] Or 
 who shall receive, or cause to be received, any 
 money whatsoever for any such ticket, receipt, 
 chance, or number, or for or in consideration for 
 any money to be repaid in case any ticket or 
 tickets, number or numbers, in any foreign Shall 
 
 lottery, or pretended foreign lottery, or any class, For every such offence forfeit 
 
 part, or division thereof, shall prove fortunate : 200. Application as before (b). 
 
 (b) See now, post, p. 329. 
 G. Y
 
 322 
 
 THE LAW OF GAMBLING. 
 
 [1738] 
 
 Offence. Penalty. 
 
 VIII. 12 Geo. II. c. 28 (see page 66). 
 
 After reciting 10 & 11 Will. IV. c. 17; 9 
 Anne, c. 6 ; 8 Geo. I. c. 2, s. 36, enacts : 
 
 i. Keeping a lottery.'] Sect. 1. Any person who 
 shall erect, set up, continue, or keep any office or 
 place under tho denomination of a sale or sales 
 of houses, lands, advowsous, presentations to 
 livings, plate, jewels, ships, goods, or other 
 things by way of lottery, or by lots, tickets, 
 numbers or figures, cards or dice : 
 
 ii. Sale by means of chance."] Or who shall ex- 
 pose to sale any houses, lands, advowsons, pre- 
 sentation to livings, plate, jewels, ships, or other 
 goods by any game, method or device whatso- 
 ever, depending upon or to be determined by any 
 lot or drawing, whether it be out of a box or 
 wheel, or by cards or dice, or by any machine, 
 engine, or device of any kind whatsoever : 
 
 Shall 
 
 Forfeit 200. Application, one- 
 third to informer, remainder to 
 poor of parish. 
 
 Setting up of ace of hearts, $c.~\ Sect. 2. Ace of 
 hearts, pharaoh, basset and hazard, declared to 
 be lotteries by cards or dice within 9 Anne, c. 6 ; 
 8 Geo. I. c. 2, s. 36. 
 
 And any person who shall set up, maintain, or 
 keep the said games of the ace of hearts, pharaoh, 
 basset and hazard : 
 
 Shall 
 
 Be liable to forfeit 200 as for 
 keeping any lottery mentioned in 
 the Act. 
 
 Liability of adventurers.'] Sect. 3. Any person 
 who shall be an adventurer in any of the said 
 games, lottery or lotteries, sale or sales : 
 
 Or who shall play, set at stake, or punt at 
 either of the said games of the ace of hearts, &c. : 
 
 Shall 
 
 Forfeit 50, or in default of pay- 
 ment, imprisonment not exceeding 
 six months. 
 
 [1740] 
 
 IX. 13 Geo, II. c. 19. 
 
 Recites lastly hereinbefore mentioned statute. 
 Declares that 
 
 Game of passage, and other, games with dice, ex- 
 cept backgammon, to be lotteries. ,] The game of 
 passage, and all and every other game and
 
 THE LOTTERY ACTS, OFFENCES. 
 
 323 
 
 Offence. 
 
 games invented, or to be invented, with one or 
 more die or dice, or with any other instrument, 
 engine or device in the nature of dice, having 
 one or more figures or numbers thereon (back- 
 gammon and the other games now played with 
 the backgammon tables only excepted) , are games 
 or lotteries by dice, within the lastly hereinbefore 
 mentioned Act. 
 
 i. Setting up a place for the same.'] And any 
 person who shall set up, maintain, or keep any 
 office, table, or place for the said game of passage, 
 or for any other such game or games as aforesaid 
 (backgammon, &c. only excepted) : 
 
 ii. Adventurers.^ Or any person who shall 
 play, set at stake, or adventure at the said 
 game of passage, or at any other such game as 
 aforesaid (backgammon, &c. excepted) : 
 
 Penalty. 
 
 Shall 
 
 Forfeit as for setting up a game, 
 &c. within the lastly hereinbefore 
 mentioned Act. 
 
 Shall 
 
 Forfeit respectively as in the 
 lastly hereinbefore mentioned Act 
 is inflicted on any one who shall 
 play, &c. at any of the games 
 therein mentioned. 
 
 [1745] 
 
 X. 18 Geo. II. c. 34 (see page 67). 
 
 12 Geo. II. c. 28, supplemented, i. Keeping a 
 place for roukt.~\ Sect. 1. Any person who shall 
 keep any house, room, or place for playing, or 
 permit or suffer any person or persons whatso- 
 ever within any such house, room or place, to 
 play at the said game of roulet, otherwise roly- 
 poly, or at any other game with cards or dice 
 already prohibited by law : 
 
 ii. Permit the play.~\ Or who shall permit or 
 suffer any person or persons as aforesaid to play 
 at the said game of roulet, otherwise roly-poly, 
 or at any other game with cards or dice already 
 prohibited by law : 
 
 in. Players, liability of.~\ Sect. 2. Any person 
 who shall play at the said game of roulet, other- 
 wise roly-poly, or at any game or games with 
 cards or dice already prohibited by law : 
 
 Y2 
 
 Shall 
 
 Be liable to the penalties for the 
 corresponding offences in the lastly 
 hereinbefore mentioned Act. 
 
 Shall 
 
 Be liable to the penalties directed 
 by the lastly hereinbefore men- 
 tioned Act.
 
 324 
 
 THE LAW OF GAMBLING. 
 
 [1802] 
 
 Offence. Penalty. 
 
 XL 42 Geo. III. c. 119 (see page 68). 
 
 See Reg. v. Crawshaw (b}. 
 
 The suppression of little goes.~\ Declares all such 
 games or lotteries called Little Goes to be common 
 and public nuisances. 
 
 i. Keeping a place for purpose of any lottery. .] 
 Sect. 2. Any person -who shall publicly or 
 privately keep any office or place to exercise, 
 keep open, show, or expose to be played, drawn, 
 or thrown at or in, either by dice, lots, cards, 
 balls, or by numbers or figures, or by any other 
 way, contrivance, or device whatsoever, any 
 game or lottery called a Little Go, or any 
 other lottery whatsoever not authorized by 
 Parliament : 
 
 ii. Suffering a game to be played in a placed] 
 Or who shall knowingly suffer to be exercised, 
 kept open, shown, or exposed to be played, 
 drawn or thrown at or in, either by dice, lots, 
 cards, balls, or by numbers or figures, or by any 
 other way, contrivance, or device whatsoever, 
 any such game or lottery in his or her house, 
 room, or place : 
 
 Shall 
 
 Forfeit 500, and shall be 
 punishable as a rogue and vaga- 
 bond, under 17 Geo. II. c. 5. 
 
 And (sect. 3) if no information be 
 laid for penalties, shall be punish- 
 able as a rogue and vagabond, 
 under 17 Geo. II. c. 5 ; 27 Geo. III. 
 c. 1. 
 
 iii. An executive power. ~\ Sect. 4. Justices are 
 empowered on information to authorize persons 
 to break open doors of places (if at night with a 
 police officer) where such offences are committed, 
 and apprehend offenders : 
 
 iv. Forcible obstruction of searchers.'] And any 
 person who shall forcibly obstruct, oppose, 
 molest, or hinder any such officer or officers, or 
 others acting in his or their aid or assistance, in 
 due execution of their duty, or in the due enter- 
 ing into such house, or place, or in seizing, de- 
 taining, or conveying before such justice or 
 justices any such offenders or persons as afore- 
 said: 
 
 Shall 
 
 On so obstructing, opposing, 
 molesting, or hindering as afore- 
 said, be fined, imprisoned, and 
 publicly whipped, as the Court may 
 deem fit. 
 
 (b) Reg. Y. Crawshaw, 1 Bell, C. C. 303 ; 8 Cox, C. C. 375.
 
 THE LOTTERY ACTS, OFFENCES. 
 
 325 
 
 Offence. 
 
 v. Liability of employer of assistant."] And any 
 person, although discovered in such house or 
 place as aforesaid, who shall employ or cause 
 to be employed any person or persons in carry- 
 ing on any of the transactions aforesaid, or in 
 aiding or assisting any such person or persons : 
 
 vi. Liability for agreeing to pay money, $c. on an 
 event relative to such lottery. .] Sect. 5. Any per- 
 son who shall on or under any pretence, device, 
 form, denomination, or description whatsoever, 
 promise or agree to pay any sum or sums, or to 
 deliver any goods or to do or forbear doing any- 
 thing for the benefit of any person or persons, 
 whether with or without consideration, on any 
 event or contingency relative or applicable to the 
 drawing of any ticket or tickets, lot or lots, 
 numbers or figures in any such game or lottery : 
 
 vii. Offence of publishing any proposal for, $c.~\ 
 Or who shall publish any proposal for any of the 
 purposes aforesaid : 
 
 Penalty. 
 
 Shall 
 
 Be deemed a rogue and a vaga- 
 bond : 27 Geo. III. c. 1. 
 
 Shall 
 
 For every offence forfeit 100 ; 
 application, one-third to Crown, 
 one-third to informer, one-third to 
 person apprehending offender. 
 
 [1836] 
 
 6 & 7 Will. IV. c. 66. 
 
 Advertising foreign lotteries.] Enacts that 
 if any person shall print or publish, or cause 
 to be printed or published, any advertise- 
 ment or other notice of or relating to the 
 drawing or intended drawing of any foreign 
 lottery, or of any lottery or lotteries not autho- 
 rized by some Act of Parliament ; or if any 
 person shall print or publish, or cause to be 
 printed or published, any advertisement or other 
 notice of or for the sale of any ticket or tickets, 
 chance or chances, or of any share or shares of 
 any ticket or chance of or in any such lottery or 
 lotteries as aforesaid, or any advertisement or 
 notice concerning or in any manner relating to 
 any such lottery or lotteries, or any ticket, chance, 
 or share, tickets, chances, or shares thereof or 
 therein : for every such offence 
 
 Shall 
 
 Forfeit 50, to be recovered with 
 full costs by action of debt, bill, 
 plaint, or information in any of His 
 Majesty's Courts at Westminster 
 (one moiety to use of His Majesty, 
 and the other moiety to the person 
 who shall inform or sue for the
 
 326 THE LAW OF GAMBLING. 
 
 From the foregoing tabular statement, it appears that 
 the criminal proceedings may be by indictment, or on 
 information, for penalties, or on information as against 
 a person as a rogue and a vagabond. 
 
 I. Public I. Informations for a common misdemeanor may be 
 
 founded as follows : Lotteries within 10 & 11 Will. III. 
 c. 17 (including sweepstakes) ; ace of hearts, &c., under 
 12 Geo. II. c. 28; games of passage, &c., under 13 
 Geo. II. c. 19 ; keeping a place for roulet, under 18 
 G-eo. II. c. 34 ; little goes, under 42 Geo. III. c. 119. 
 
 In the case of Reg. v. Crawshaw (c), the defendant was 
 indicted for a public nuisance, to wit, for setting up a 
 certain lottery, contrary to 10 & 11 Will. III. c. 17, s. 1. 
 It was contended on his behalf that the proper remedy 
 was under the 2nd section of that statute. But it was 
 held " that the principle has prevailed, and been acted 
 upon without qualification, that when the legislature 
 declares an act to be a public nuisance, the person doing 
 the act is indictable" (d), and that, accordingly, the 
 counts framed upon the Lottery Act were not bad. 
 
 But the proceeding by indictment is not of much 
 general utility, having regard to the other proceedings 
 which are available. 
 
 II. Informa- II. Informations for penalties may be grounded in 
 penalties. respect of the different offences, as follows : 
 Keeping a (A.) For keeping a place : under the pretence of im- 
 proving small sums of money (10 Anne, c. 26, s. 108, 
 or under 8 Geo. I. c. 2, s. 36) ; or under denomination 
 of a sale of, &c., by way of lottery (12 Geo. II. c. 28) ; 
 or for the game of passage, &c. (13 Geo. II. c. 19, s. 9) ; 
 or for the purpose of any little go (42 Geo. III. c. 119, 
 s.2). 
 
 (c) Reg. v. Crawshaw, 1 Bell, 0. C. 303 ; 8 Cox, C. 0. 375. 
 
 (d) R. v. Gregory, 5 B. & Ad. 555.
 
 THE LOTTERY ACTS, OFFENCES. 327 
 
 There is an offence of a nature ancillary to the fore- Advertising, 
 going, namely, advertising : advertising the offices (10 
 Anne, c. 26, s. 108) ; or publishing a scheme to be con- 
 ducted in such place (8 Geo. I. c. 2) ; or publishing 
 any proposal for using a place contrary to the Act, 
 42 Geo. III. c. 119 (s. 5). 
 
 All such offences of keeping a place for the forbidden 
 purpose imply a number of acts committed, or intended 
 to be committed, and might lead to some difficulty in 
 establishing. Doubtless the decisions cited in Chapters 
 IY. and XIV. would apply, that such illegal purpose 
 need not be the sole and exclusive purpose. The diffi- "Place." 
 culty of the meaning of the term " place " has been met * ^Q s'To 
 by a statutory explanation. By section 60 of the statute 
 4 Geo. IV. c. 60, it is stated that doubts had arisen 
 whether, under and by virtue of the former Act (42 
 Geo.. III. c. 119), the word "place" mentioned in the 
 said Act was meant to describe any place used for the 
 purpose of drawing the illegal lottery or little go, or 
 in anywise relating thereto, be the same an inclosed 
 building or not ; it was therefore thereby declared and 
 enacted that the word " place," when and where used 
 in the said Act and the several above recited Acts, re- 
 lating to the drawing of the said illegal lottery called 
 little go, or the assembling of persons for any of the 
 illegal purposes mentioned therein, or for the purpose 
 of any little go or lottery insurance, shall be taken to 
 extend to and mean any place in or out of an inclosed 
 building or premises, whether upon land or water, where 
 such illegal practices, or anything relating thereto, shall 
 be carried on or attempted to be carried on. 
 
 (B.) There are, however, the series of offences, not 
 involving an actual or contemplated series of acts as is 
 implied in keeping a place for a purpose ; in respect of
 
 328 
 
 THE LAW OF GAMBLING. 
 
 Exercising or 
 setting up. 
 
 Permitting. 
 Playing. 
 
 Assisting. 
 
 Advertising. 
 
 Jurisdiction 
 of magis- 
 trates. 
 
 these offences, the Acts go much beyond for example, 
 the Betting House Act. Such offences are as follows : 
 Publicly or privately exercise a lottery (10 & 11 
 Will. IV. c. 17) ; offer a house, &c., for sale by lottery 
 (8 Geo. I. c. 2, s. 36 ; 12 Q-eo. II. c. 28) ; sell a ticket 
 in a foreign lottery (9 Geo. I. c. 19, s. 4 ; 6 Geo. II. 
 o. 35, s. 29) ; set up the game of hazard, &c. (12 Greo. II. 
 c. 28, s. 2), or any little go (42 Greo. III. c. 119, s. 2). 
 
 Further, there are the ancillary offences: permitting a 
 person to play roulet (18 Greo. II. c. 34, s. 1) ; knowingly 
 to suffer a little go (42 Greo. III. c. 119, s. 2) ; playing 
 at a lottery (10 & 11 Will. III. c. 17, s. 3) ; contributing 
 to a sale by chance (8 Greo. I. c. 2, s. 37) ; receiving 
 money on the contingency of a foreign lottery (6 Greo. II. 
 o. 35, s. 29) ; adventuring in such game (12 Geo. II. 
 c. 28, s. 3) ; playing at passage, &c. (13 Geo. II. o. 19, 
 s. 9), or at roulet or other forbidden game with dice 
 (18 Geo. II. c. 34, s. 2). Again, there are offences 
 connected with assisting : a person exercising a little 
 go, or employing or causing others to be so employed 
 (42 Geo. III. c. 119, s. 4). There are also the offences 
 of advertising : the setting up of a lottery (9 Anne, 
 c. 6, s. 57) ; publishing a proposal or scheme (8 Geo. I. 
 c. 2, s. 36, and 9 Geo. I. c. 19, s. 4), or a little go 
 (42 Geo. III. c. 119, s. 5). 
 
 The main offences and the chief ancillary ones are 
 well defined. This somewhat chaotic mass of statutes 
 might with advantage be repealed, and re-enacted in 
 one well-arranged Act. 
 
 The magistrates have no power to inflict on persons 
 the pecuniary penalties attached to the different offences 
 heretofore mentioned. It has been enacted by the 
 statute 46 Geo. III. c. 148, that no information shall 
 be prosecuted to recover penalties against any law con-
 
 THE LOTTERY ACTS, OFFENCES. 329 
 
 cerning lotteries, save in the name of the Attorney- Present appH- 
 General, and that such penalties when recovered shall penalties, 
 be applied to the use of the Crown. With regard to 
 proceedings against proprietors of newspapers for adver- 
 tising lotteries, it has been separately enacted that the 
 proceedings must be in the name of the Attorney- 
 General (e). 
 
 In Taylor v. Smetten (/), the appellant had been 
 convicted before the justices that he unlawfully did 
 publicly keep in a tent a lottery to be drawn by lots and 
 by coupons by a certain contrivance, to wit, the distri- 
 buting of a quantity of parcels of tea with coupons in 
 certain of such parcels, such being a lottery not autho- 
 rized by law, to wit, a lottery for clocks and other articles. 
 The justices convicted, and imposed a fine of 20s. 
 Hawkins, J., said, that if he had simply been convicted 
 of keeping a lottery and fined 20s. for so doing, under 
 42 Geo. III. c. 119, s. 2, then the above-mentioned 
 Act, 46 Geo. III. c. 148, s. 59, applied, and the con- 
 viction could not be upheld (g). The sole offences 
 over which the justices have jurisdiction are those in 
 respect of which the offender may be dealt with as a 
 rogue and a vagabond. 
 
 III. Information as against a rogue and a vagabond. 
 This information lies in respect of the offences of 
 keeping lotteries within section 2 of the statute 10 & 11 
 Will. III. c. 17; but whilst section 3 of that Act 
 subjects adventurers to penalties, it does not allow of 
 their conviction as rogues, and they are, therefore, 
 punishable only on the information of the Attorney- 
 General. Again, by section 2 of the Act 42 Geo. III. 
 
 (e) 8 & 9 Viet. c. 74. 
 
 (/) Taylor v. Smetten, 11 Q. B. D. at p. 212. 
 
 (g) Reg. v. Tuddenham, 9 Dowl. 937 ; 10 L. J. M. C. 163.
 
 330 THE LAW OF GAMBLING. 
 
 c. 119, it is provided that, in respect of the offences 
 therein described, keeping a place for exercising a 
 lottery, or knowingly suffering a lottery to be exer- 
 cised in a place, and, by section 4 of the same Act, 
 in respect of the offences therein of employing, or 
 causing to be employed, or aiding and abetting, the 
 offender may be dealt with as a rogue and a vagabond. 
 Appeal With regard to an appeal against a summary convic- 
 
 against sum- 
 
 mary convic- tion as a rogue and a vagabond, two cases arise : either 
 the penalty is imprisonment without the option of a 
 fine, or a fine is imposed. Where there is imprison- 
 ment without the option of a fine, then, under sec- 
 tion 19 of the Summary Jurisdiction Act, 1879, an 
 appeal to quarter sessions lies where the defendant has 
 not pleaded guilty. Where there is no imprisonment, 
 or only imprisonment in default of payment of a fine, 
 then a question of some difficulty arises as to the effect 
 of section 7 of the statute 42 Greo. III. c. 119. Under 
 that section, all pains, forfeitures, fines, and penalties, 
 and all provisions, powers, authorities, rules, regula- 
 tions, restrictions, exemptions, and exceptions, clauses, 
 matters, and things contained in 17 Greo. II. c. 5 (the 
 then Yagrant Act) were incorporated. The statute 
 5 Oreo. IV. c. 83, has been substituted f or ^the Act 
 17 Greo. II. c. 5. In the present Yagrant Act, an 
 express power of appeal is, under section 14, conferred 
 on a person aggrieved. But such power of appeal is 
 a special provision, and on the whole it would appear 
 that the general words of section 7 of the Little-go 
 Statute do not incorporate such special provision (/?). 
 However, the circumstances which mostly lead to 
 
 (7i) R. v. Surrey JJ., (1892) 2 Q. B. 719; 61 L. J. M. C. 200; 
 66 L. T. 578 ; E. v. Stone, 6 East, 514 ; R. v. Hanson, 4 B. & Aid. 
 519; R. v. Worcester JJ., 7 Dowl. 789.
 
 THE LOTTEEY ACTS, OFFENCES. 
 
 appeals in connection with these offences are such as 
 raise questions of law whereunder it has to be decided 
 whether a given transaction or scheme is a lottery. 
 Such question is proper subject- matter for a special 
 case. The essentials of a lottery have been discussed 
 in Chapter IV. (). 
 
 (i) Pages 79 et seq.
 
 ( 333 ) 
 
 FOUMS. 
 No. 1. Example of Information. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 
 The day of , one thousand eight hundred 
 
 and ninety 
 
 The information (a) of C. D. [address, description], who First offence 
 upon oath [or affirmation] states that A. B., of [address, under 16& 17 
 
 description (4)], on the day of , and on s . 3.' 
 
 divers other days between that date and the date of 
 laying this information, being the owner of a certain 
 
 house and premises situate at X. Street, in , then 
 
 and there opened, kept, and used the same for the 
 purpose of betting with persons resorting thereto, con- 
 trary to the statute in that case made and provided. 
 
 Taken before me, (L.S.) 
 
 (Signed) X. Y., 
 
 Justice of the Peace for the [County, or 
 Borough, or City] aforesaid. 
 
 (a) If complaint, strike out word "information," and insert "com- 
 plaint." 
 
 (b) The address and description of the offender, as well as the place 
 at which the offence was committed, may sufficiently appear from 
 the statement of the offence, as in the ahove example. 
 
 %* The black type is inserted by way of illustration of particular offences^
 
 334 APPENDIX. 
 
 No. 2. Search Warrant. 
 
 County of 
 
 WHEREAS it appears to me, J. P., one of the justices of 
 our lady the Queen, assigned to keep the peace in the said 
 
 county, by the information on oath of A. B., of , in 
 
 the county of , , that the house [room or 
 
 place] known as \_here insert a description of the house, 
 room, or place by which it may be readily known and 
 found^, is kept and used as a common gaming house 
 
 within the meaning of an Act passed in the 
 
 year of the reign of her Majesty Queen Victoria, in- 
 tituled [here insert the title of this Act] : 
 
 This is, therefore, in the name of our lady the Queen, 
 to require you, with such assistants as you may find 
 necessary, to enter into the said house [room or place], 
 and, if necessary, to use force for making such entry, 
 whether by breaking open doors or otherwise, and there 
 diligently to search for all instruments of unlawful gaming 
 which may be therein, and to arrest, search, and bring 
 before me, or some other of the justices of our lady the 
 Queen assigned to keep the peace within the county 
 
 of , as well the keepers of the same as also the 
 
 persons there haunting, resorting, and playing, to be 
 dealt with according to law ; and for so doing this shall 
 be your warrant. 
 
 J. P., (L.S.) 
 
 Given under my hand and seal at , in the county 
 
 of , this day of , in the year 
 
 of the reign.
 
 FOEMS. 335 
 
 No. 3. Example of Summons to Defendant. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 
 To A. B. of 
 
 Information on oath [or affirmation] has been laid this 
 
 day by C. D., for that you on the day of 
 
 and on divers other days, between that date and the date Second 
 of the said information, being the occupier of a certain 6 e ^ c ^ 
 
 house and premises situate at X. Street, in , then c. no, s. 3 
 
 and there opened, kept, and used the same for the pur- 
 pose of receiving money as and for the consideration for 
 certain assurances, undertakings, promises and agree- 
 ments to pay and give thereafter certain sums of money 
 on certain events and contingencies of and relating to 
 certain horse races, contrary to the statute, &c. 
 
 You are therefore hereby summoned to appear before 
 
 the Court of Summary Jurisdiction, sitting on 
 
 day, the day of , at the hour of 
 
 in the forenoon, to answer to the said information. 
 
 Dated the day of , one thousand eight 
 
 hundred and ninety 
 
 (L.S.) 
 
 (Signed) J. P. 
 
 Justice of the Peace for the [County or 
 Borough or City] aforesaid. 
 
 No. 4. Example of Summons to a Witness. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 
 To E. F. 
 
 A. B. has been charged by C. D. for that he on the _ 
 
 Offence under 
 day of , being the owner (a) of a certain house and section 4, 
 
 %* The black type is inserted by way of illustration of particular offences.
 
 336 APPENDIX. 
 
 16 & 17 Viet, premises situate at No. Street, , opened, kept, 
 
 and used for the purpose of betting with persons resort- 
 ing thereto, unlawfully did receive of X. Y. the sum of 
 5 as a deposit on a certain bet, on condition of paying 
 a sum of money to the said X. Y. on the happening of an 
 event or contingency of and relating to a certain horse 
 race, to wit, on a horse named "Acrobat," thereafter to 
 run in a race known as the Lincoln Handicap, contrary to 
 the statute, &c. 
 
 And it appearing to me by the oath [or affirmation] of 
 
 , that you are likely to give material evidence 
 
 therein on behalf of the informant [_or defendant], and will 
 not voluntarily appear for that purpose. 
 
 You are therefore hereby summoned to appear before 
 the Court of Summary Jurisdiction sitting at , on 
 
 -day the day of at the hour of 
 
 in the noon, to testify what you know of such matter. 
 
 Dated the day of , one thousand eight 
 
 hundred and 
 
 (L.S.) 
 
 (Signed) J. P. 
 
 Justice of the Peace for the [County or 
 Borough or City] aforesaid. 
 
 (a) Or occupier, or person acting for or on behalf, &c. (as the case 
 may be). 
 
 No. 5. Example of Warrant for Apprehension 
 of Defendant. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 
 To each and all of the Constables of 
 
 Information on oath [or affirmation] has been laid on 
 the day of , by C. D. that A. B., hereinafter 
 
 * # * The black type is inserted by way of illustration of particular offences.
 
 FORMS. 337 
 
 called the defendant, being a person then having the care Charge 
 and management of an unlawful business, conducted in a ^^er 
 
 certain house and premises, situate at , by opening, underlet. 4 
 
 keeping, and using the same for the purpose of receiving 
 money on deposit by or on behalf of a certain person, as 
 and for the consideration for assurances, undertakings, 
 promises, and agreements to pay certain sums of money 
 on events or contingencies of and relating to horse races, 
 
 did, on the day of , receive of X. Y. the 
 
 sum of 5 as a deposit on a certain bet, on condition of 
 paying a sum of money to the said X. Y. on the happening 
 of an event or contingency of and relating to a certain 
 horse race, to wit, on a horse named "Ladas," thereafter 
 to run in a race known as the Derby, contrary to the 
 statute. 
 
 [Where the defendant has been summoned and has not 
 appeared, add 
 
 And the defendant was thereupon summoned to appear 
 
 before the Court of Summary Jurisdiction, sitting at , 
 
 on day, the day of , at the hour of 
 
 in the noon, to answer the said charge. 
 
 And oath [or affirmation or declaration] has been made 
 that the defendant was duly served with the summons, but 
 did not appear, and that such information is true.] 
 
 You are therefore hereby commanded to bring the de- 
 fendant before the Court of Summary Jurisdiction, sitting 
 
 at forthwith [or on , the day of , 
 
 at the hour of in the noon], to answer to the 
 
 said information. 
 
 Dated the day of , one thousand eight 
 
 hundred and ninety . 
 
 (Signed) J. P., (L.S.) 
 Justice of the Peace for the [County or 
 Borough or City aforesaid]. 
 
 ' The black type it inserted by way of illustration of particular offences. 
 
 * * 
 
 O.
 
 338 APPENDIX. 
 
 No. 6. Example of Warrant for Apprehension 
 of Witness. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 To each and all the constables of 
 
 E. F. was duly summoned to appear before the Court of 
 
 Summary Jurisdiction, sitting at , on day, the 
 
 day of , at the hour of in the 
 
 noon, to testify what he should know concerning a certain 
 information against A. B. : 
 
 And he has neither appeared thereto nor offered any just 
 excuse for his neglect : 
 
 And it has been proved on oath [or affirmation] that the 
 summons has been duly [indorsed and] served on him, and 
 that a reasonable sum has been paid \or tendered] to him 
 for his costs and expenses in that behalf. 
 
 You are therefore hereby commanded to bring him 
 
 before the Court of Summary Jurisdiction, sitting at , 
 
 forthwith \or on day, the day of , one 
 
 thousand eight hundred and ninety ]. 
 
 (Signed) J. P., (L.S.) 
 
 Justice of the Peace for the [County or 
 
 Borough or City aforesaid]. 
 
 No. 7. Example of Warrant for Apprehen- 
 sion of Witness in First Instance. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 
 To each and all of the constables of 
 
 Offence of A. B. has been charged by C. D., for that he, being the 
 mitting. per owner [or occupier] of a certain place, to wit, an enclosure 
 16 & 17 Viot. situate at, &c-., and known as the Ring, unlawfully 
 
 -1-1QO 
 
 and knowingly and wilfully did permit the said place, 
 
 %* The black .type is inserted by way of illustration of particular offences.
 
 FORMS. 339 
 
 on ' the day of , one thousand eight 
 
 hundred and ninety , to be used by G. H. and 
 
 others for the purpose of betting with persons resorting 
 thereto, contrary to the statute, &c. : 
 
 And it appearing to me by the oath [or affirmation] of 
 , that E. F. is likely to give material evidence con- 
 cerning the said matter, and that it is probable that he 
 will not attend to give evidence concerning the said matter 
 unless compelled so to do, 
 
 You are therefore hereby commanded to bring him be- 
 fore the Court of Summary Jurisdiction sitting at , 
 
 forthwith \or on day the day of , 
 
 one thousand eight hundred and ninety ]. 
 
 (Signed) J, P., (L.S.) 
 Justice of the Peace for the [County 
 or Borough or City aforesaid]. 
 
 No. 8. Example of Commitment on Remand. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of the City of 
 
 To each and all the constables of , and to the 
 
 governor of her Majesty's prison at . 
 
 A. B., hereinafter called the defendant, being brought 
 
 before the Court of Summary Jurisdiction sitting at , 
 
 charged with having unlawfully exhibited and published Offence under 
 
 on the day of , at , a certain placard Jf 
 
 and advertisement, whereby it was made to appear that 
 a certain house and premises, situate and known as No. , 
 
 Street, aforesaid, was then and there opened, kept, 
 
 and used by him for the purpose of betting with persons 
 resorting thereto, contrary to the statute, &c. : 
 The hearing of the case being adjourned : 
 You, the said constables, are therefore hereby com- 
 manded to convey the defendant to the said prison, and 
 
 %* The black type is inserted by way of illustration of particular offences. 
 
 z2
 
 340 APPENDIX. 
 
 there to deliver him to the governor thereof, together with 
 this warrant, and you, the governor of the said prison, to 
 
 receive him into your custody and keep him until the 
 
 day of , and on that day to convey him before the 
 
 Court of Summary Jurisdiction sitting at , at the 
 
 hour of in the noon, to be further dealt 
 
 with according to law. 
 
 Dated the day of , one thousand eight 
 
 hundred and ninety . 
 
 (Signed) J. P., (L.S.) 
 Justice of the Peace for the [County or 
 Borough or City aforesaid]. 
 
 [Indorsement where Bail allowed.^ 
 I hereby certify that I consent to the defendant being 
 
 bailed, himself in pounds, and sureties in 
 
 pounds each. 
 
 No. 9. Example of Conviction for Penalty. 
 
 In the County of , Petty Sessional Division of 
 
 Borough of 
 
 City and County of 
 
 Before the Court of Summary Jurisdiction sitting 
 
 at . 
 
 The day of , one thousand eight hundred 
 
 and ninety . 
 
 A. B., hereinafter called the defendant, is this day con- 
 victed for that he on the day of , at 
 
 Advertising aforesaid, unlawfully in a certain newspaper, to wit, 
 
 37 & 38 Viet. , published an advertisement whereby it was made 
 
 c - 15> to appear that C. D. would, on application, give informa- 
 tion with respect to certain events, to wit, events whereon 
 E. F., being the occupier of a certain house and premises 
 situate and known as No. , Street, then and 
 
 %* The black type is inserted by way of illustration of particular offences.
 
 FORMS. 34l> 
 
 there opened, kept, and used by the said E. F., for the 
 purpose of receiving money as and for the consideration 
 for agreements to give thereafter sums of money on events 
 relating to horse races, was willing to receive deposits as 
 mentioned in the statute 16 & 17 Viet. c. 119, contrary to 
 section 3 of the statute 37 & 38 Viet. c. 15. 
 
 And it is adjudged that the defendant for his said 
 offence do forfeit and pay the sum of 30/., and do also 
 pay the further sum of 51. for costs forthwith. 
 
 And in default of payment it is adjudged that the 
 
 defendant be imprisoned in her Majesty's prison at 
 
 and there kept to hard labour for the space of two calendar 
 months, unless the said sums, and all costs and charges of 
 the said commitment and of his conveyance to the said 
 prison, be sooner paid. 
 
 (Signed) J. P., (L.S.) 
 
 Justice of the Peace for the [County or 
 
 Borough or City aforesaid]. 
 
 No. 10. Example of Notice of Appeal. 
 
 In the County of , Petty Sessional Division of 
 
 City and County of the City of 
 
 Borough of 
 
 To the Clerk of the Court of Summary Jurisdiction 
 sitting at , and to [naming the other party~\. 
 
 Take notice that I, A. B., of , intend at the next 
 
 General Quarter Sessions of the Peace to be holden in and 
 
 for at in the said , to appeal against 
 
 a certain conviction, for that \_set out the offence and 
 
 date and adjudication], and that the grounds of such appeal 
 are that 
 
 (1.) I am not guilty of the said offence. 
 (2.) That the sentence was excessive. 
 
 Dated the . 
 
 Signed by Appellant.
 
 842 APPENDIX. 
 
 No. 11. Recognizance of Appellant. 
 
 Be it remembered, that on the day 
 
 to wit. j of , 18, A. B., of , C. D., of 
 
 , and E. F., of , personally came before me, 
 
 the undersigned, one of Her Majesty's justices of the 
 peace acting in and for , and severally acknow- 
 ledged themselves to owe to our sovereign lady the Queen 
 the sum of fifty pounds of good and lawful money of 
 Great Britain, to be made and levied on their several 
 goods and chattels, lands, and tenements respectively to 
 the use of our said lady the Queen, her heirs and suc- 
 cessors, if he the said A. B. shall fail in the condition 
 hereunder written. 
 
 (Signed) A. B. 
 
 C. D. 
 
 E. E. 
 Taken and acknowledged at 
 
 the 
 
 ^knowledged. at \ 
 
 , before me, } Justice ' 
 
 The condition of the above-written recognizance is such 
 that if the said A. B. shall appear at the next General 
 Quarter Sessions of the peace to be holden in and for 
 
 the said , and there enter and prosecute an appeal 
 
 against a certain conviction, bearing date the , 
 
 and made by and before a Court of Summary Jurisdiction 
 
 for the said sitting at the Court House therein on 
 
 that day, for that he within six months then last past did 
 unlawfully, &c. [setting out offenci\, contrary to the statute, 
 for which offence the said A. B. was adjudged to forfeit 
 and pay the sum of fifty pounds and costs. And further, 
 that if the said A. B. shall abide the judgment and deter- 
 mination of the Quarter Sessions, and pay such costs as 
 shall be then and there awarded, then the said recog- 
 nizance to be void, or else to remain in full force and 
 virtue.
 
 FOKMS. 843 
 
 No. 12. Example of Special Case. 
 
 In the High. Court of Justice, 
 Queen's Bench Division. 
 
 Between A. B Appellant. 
 
 and 
 0. D Respondent. 
 
 to wit. ) 
 
 1. This is a Case stated by , the undersigned, Paragraphs 
 
 being of Her Majesty's justices of the peace in a u t ry 
 
 and for , and being a Court of Summary Jurisdic- 
 tion, sitting as a Court of Summary Jurisdiction, on the 
 application in writing of the appellant, who was dissatisfied 
 
 with our determination as being erroneous in point of law, 
 as hereinafter stated : 
 
 2. [Sets out the information, and the hearing and the 
 adjudication.^ 
 
 3. [States request to state a case, pursuant to, Sfc., and 20 & 21 Viet. 
 the fact that a recognizance has been duly entered into.~\ ' 2 ^'^yict 
 
 4. Now we do hereby state and sign the following c. 49, s. 33. 
 Case : 
 
 CASE. 
 
 5. The material facts [which were proved to the satisfac- 
 tion of the justices, and for convenience of reference, if long, 
 in sub-paragraphs (a), (5), (c), $*<?.]. 
 
 6. [ Evidence tendered upon behalf of the appellant.^ 
 
 7. [Set out a list of the cases cited at the hearing. ~\ 
 
 OPINION. 
 
 8. We find, in the first place, that the charge against Conclusion of 
 C. D. of betting with non-members within the club pre- fact> 
 raises had not been established. 
 
 We were of the opinion, in the second place, that the Conclusion of 
 words in the Act, "betting with persons resorting there- aw * 
 to " apply to persons who are distinct from the owners 
 or occupiers of the premises. 
 
 ** The black type is inserted by way of illustration of particular offences.
 
 344 APPENDIX. 
 
 Consequently, on the facts as found by us, we dismissed 
 the aforesaid charge. 
 
 QUESTION. 
 
 The Question. 9. The question upon which the opinion of the said 
 
 Court is required is, Whether the said justices came to a 
 
 correct decision in point of law upon the above statement 
 
 of facts, and if not, what should be done in the premises ? 
 
 Dated, &c. 
 
 NOTE. The recognizance to be entered into prior to the stating of 
 a case is, in substance, as in Form No. 11. 
 
 * * The black type is inserted by way of illustration of particular offences.
 
 INDEX. 
 
 ACE or HEARTS, 
 
 illegal game, lottery, 66, 255, 256, 322. 
 offences relating to, 66, 322. 
 
 ACKOSS COUNTRY, meaning of, 154. 
 
 ADDED MONEY, 
 
 what is, 154, 164. 
 
 recovery of, under sect. 18 of 8 & 9 Viet. c. 109... 155 et seq. 
 
 ADJOURNMENT of proceedings before magistrates, 228, 229. See 
 Criminal Procedure. 
 
 ADJUDICATION, 230. See Criminal Procedure, sub-tit. Conviction. 
 ADMINISTRATOR. See Personal Representative. 
 
 ADVERTISING, 
 
 criminal offences, 
 
 under Betting Houses Act (sect. 7), 
 
 (1) advertising betting house, 298, 299. 
 
 place used for exhibiting betting lists, 
 299. 
 
 (2) inducing persons to resort to such place, 299. 
 
 (3) inviting persons to resort to such place, 299. 
 under Anderson's Act, 
 
 sending, &c. circular, &c., 299, 300. 
 
 whereby information as to illegal wagering is 
 
 offered, 300. 
 person is induced to apply for such 
 
 information, 300. 
 
 person is invited to take a share, &c., 300. 
 form of a charge [black type"], 340, 341. 
 under Soliciting Infants to Bet Act, 
 
 inviting person known to be an infant, 302, 303. 
 sender, whom deemed to be, 303. 
 anyone at University or school, 303. 
 under Lottery Acts, 
 
 setting up a lottery, 320, 328. 
 publishing a scheme, 320, 328. 
 publishing a little go, 325, 328. 
 advertising a foreign lottery, 321, 325. 
 civil obligations as to illegal advertising. See Illegality. 
 not illegal, 
 
 advertisements of racing tips, 300, 301, 302, 
 of place abroad, 302.
 
 346 INDEX. 
 
 AdENCY, general principles of, 175, 176. 
 
 AGENTS, 
 
 in illegal transactions, 
 
 no action against, for breach of contract, 123, 124. 
 for commission, 124. 
 money lent by, 124. 
 money applied in payment of illegal debt, 
 
 125. 
 
 liable for money received to use of principal, 125, 126. 
 secus, where particeps criminis, 127. 
 
 See Stakeholder in Illegal Transactions. 
 in void wagering transactions, 
 
 no action against, for breach, of contract, 176. 
 disbursements by, 
 
 (1) prior to Gaming Act, 1892. ..178. 
 
 express request to pay, 178. 
 implied request to pay, 179, 180, 181, 182, 183, 
 184, 185. 
 
 (2) post Gaming Act, 1892, irrecoverable, 198, 199. 
 indemnity of, by principal, 
 
 (1) prior to Gaming Act, 1892... 175. 
 
 Read v. Anderson, 181 et seq. 
 
 (2) post Gaming Act, 1892, none, 198, 199. 
 commission of, 
 
 ( 1} prior to Gaming Act, 1892, recoverable, 185. 
 (2) post Gaming Act, 1892, irrecoverable, 198, 199. 
 revocation of authority, 
 act of parties, 175. 
 bankruptcy of principal, 176. 
 death of principal, 176. 
 where interest, 176, 183. 
 winnings, recovery of, from, 186. 
 subsisting right, 186, 187, 188. 
 burden of proof in action, 188. 
 estoppel of agent, 188. 
 illustrated, 189. 
 Gaming Act, 1892, effect, 203, 204. 
 
 See Commission Agent ; Broker ; Stakeholders in 
 
 Wagering Transactions ; Partnership. 
 
 criminal liability of. See Gaming Houses Acts, 244, 250, 
 258 ; Betting Houses Acts, 263, 264, 265, 294, 295, 297 ; 
 Lottery Statutes, 328. 
 
 ALEHOUSE, 305 et seq. See Licensed Premises, Gaming on. 
 
 APPEALS, 232 234. See Criminal Procedure. 
 under Gaming Houses Acts, 248, 252. 
 under Betting Houses Act, 268. 
 under Lottery Statutes, 330. 
 under Licensing Act, 1872... 315. 
 
 by whom, 315. 
 See also Billiards. 
 notice of appeal, form of, 341. 
 
 ABCHERY, 42, 43.
 
 INDEX. 347 
 
 ART UNIONS, 
 lotteries, 69. 
 conditions of legality, 69. 
 
 ASSIGNEE, OFFICIAL, 216. See Stock Exchange. 
 
 AUTREFOIS ACQUIT OB CONVICT, 230, 231, 234. See Criminal 
 
 Procedure. 
 occasion for such plea under Betting Houses Act, 265, 266. 
 
 BACKGAMMON, games played on table, lawful, 67. 
 
 BACKWARDATION, 
 
 what is, 209, 210. 
 occasion for, 209, 210. 
 
 BAGATELLE, public tables, licences for, 138, 316, 317. 
 BANK, user of, in contravention of Betting Houses Act, 296. 
 BANKER, acting as such in gaming house, liability, 244. 
 
 BANKRUPTCY, 
 
 of principal, determines agent's authority, 176. 
 sanction in hazardous speculation, 215, 216. 
 
 BANK SHARES, 
 
 sale and purchase of, 217 et seq. 
 
 contracts for, 217. 
 
 object of Leeman's Act, 217. 
 
 provisions of, 217, 218. 
 
 unreasonable usage of Stock Exchange, 218, 219. 
 
 negligence of brokers, 219, 220. 
 
 no indemnity of broker against his principal, 220. 
 
 secus, where principal has actual knowledge, 220, 221. 
 
 inserting false numbers or names, misdemeanour, 218. 
 actual transfer of, 221. 
 
 BARNARD'S ACT. See Stock Exchange. 
 
 BASSET, 
 
 illegal game (lottery), 66, 255, 256, 322. 
 offences relating to, 66, 322. 
 
 BAZAAR, EASTERN, lottery, 72. 
 
 BEARS, speculative sellers, 208. See also Stock Exchange. 
 
 BETTING. See Wagering Contracts. 
 
 BETTING HOUSES ACT (16 & 17 VICT. c. 119), 
 object of 
 
 business of betting offices, 260. 
 
 enacting parts of Act go beyond preamble, 261,
 
 348 INDEX. 
 
 BETTENO HOUSES ACT (16 & 17 YIOT. c. 119) continued. 
 offences under 
 offence (A) 
 
 using place for purpose of 
 
 (1} betting with persons resorting thereto, 261. 
 (2) receiving deposits on, &c., 261. 
 place so used a common nuisance, 262. 
 
 but not two common nuisances, 262. 
 offence (B) 
 
 keeping such common nuisance is keeping a gaming 
 
 house within 8 & 9 Viet. c. 119. ..262. 
 offence (C) 
 
 using a place as owner or occupier, 262. 
 offence (D) 
 
 owner or occupier permitting illegal user, 262. 
 offence (E) 
 
 assisting in such business as manager, &c., 263. 
 the two illegal purposes, how far severable, 263. 
 double penalties, doubt as to, 264. 
 
 minor offences 
 offence (F) 
 
 such owner receiving specific deposits, 264. 
 offence (G-) 
 
 such manager, &c., receiving specific deposits, 264. 
 offence (Ep- 
 person giving acknowledgment of such deposit, 265. 
 relation of offences (A) to (E) to offences (F) to (H), 
 
 265. 
 
 autrefois acquit or convict, 266. 
 hardship of convicting twice, 266. 
 exemption of deposits in lawful sports, 266. 
 recovery of deposits in spite of illegality, 266. 
 
 delictum impar, 266. 
 executive powers under 
 
 outside metropolitan area, 267. 
 search warrant 
 
 form of, 267, 334. 
 issue of, 267. 
 powers under, 267. 
 within metropolitan area, 267. 
 
 search warrant, issue of, 267. 
 destruction of books cannot be ordered, 268. 
 resorters may be arrested, 267. 
 
 whether punishable at all, 267. 
 obstructing officers 
 
 application of provisions of Gaming Houses Act, 267. 
 
 See Gaming Houses. 
 witnesses 
 
 resorters, 268. 
 
 persons whose names are in books, 268. 
 
 further offence required, 268.
 
 INDEX. 349 
 
 BETTING HOUSES ACT (16 & 17 VICT. c. 119) continued. 
 application of Act 
 
 England and Ireland originally, 269. 
 Scotland by Anderson's Act, 269. 
 questions of law arising on the Act 
 canon of construction, 275. 
 " place," what is, 270 et seq. 
 
 question inseparably involved in that of user, 270, 287. 
 instances 
 
 table in Hyde Park, 271. 
 offices in inclosure on race-course, 272. 
 umbrella fastened to ground, 274. 
 field, 277, 284. 
 cricket ground, 279. 
 
 wooden box in enclosure on race-course, 281. 
 "spot," construction, authorities for 
 Bows v. Fenwick, 274, 275, 286. 
 Gallaway v. Maries, 281, 286. 
 "spot," construction, authorities against 
 Beg. v. Preedie, 285. 
 Eastwood v. Miller, 279, 280. 
 Haigh v. Town Council of Sheffield, 281283. 
 requisites of 
 
 fixed and ascertained, 275, 276, 282, 283, 285. 
 limited in area, how, 286. 
 immaterial 
 
 no roof, 272, 274, 276, 278. 
 no structure, 276, 278. 
 no walls or fences, 272, 285. 
 whether small or large, 278, 285. 
 any locus in quo capable of being used in contravention 
 
 of the Act, 287. 
 question of fact depending on all the circumstances, 
 
 286. 
 
 ejusdem generis construction, 280. 
 casual betting, no restrictions on, 284, 285, 287. 
 illegal user, essentials of 
 
 (\\ systematically carrying on business, 287. 
 f 2) announcing such business, 288. 
 (3) inviting resorters, 288. 
 examined, 288, 289. 
 
 "well-known professional betting man," 288. 
 "amateur," 288. 
 onus of proof, 289. 
 illegal user, bookmakers at race meetings, 289, 290. Seo 
 
 Bookmakers. 
 resorters 
 
 actual physical resorting, 290, 291. 
 
 cannot resort by telegram, &c., 290, 291. 
 
 must be distinguishable from the business betting 
 
 man, 220, 293. 
 
 members of clubs, 292, 293, 294. See Clubs. 
 bucket shops. See Bucket Shops. 
 whether within the Act, 296.
 
 350 INDEX. 
 
 BETTING HOUSES ACT (16 & 17 VICT. c. 119) continued. 
 questions of law arising on the Act continued. 
 persons criminally responsible 
 owners or occupiers, 296, 297. 
 for own acts, 296. 
 for wilfully permitting, 297, 298. 
 managers, &c., for own acts, 297. 
 typical instance of illegal business, 294, 295. 
 commission agents, lawful business of, if, 295. 
 (1^ agents de facto, 295. 
 (2) deposits not received in advance, 295. 
 advertising, offences relating to, 298, 299, 300, 301, 302. 
 
 See Advertising. 
 See Gaming on Licensed Premises. 
 
 BETTING IN PUBLIC PLACES, 
 
 in metropolitan streets, obstruction, 317, 318. 
 
 power to arrest, 318. 
 
 in any street, road, &c., or public place, 318. 
 
 rogues and vagabonds, 318. 
 
 Tna.-yJTm.Tm penalty 51., 318. 
 
 BETTING LISTS. See Advertising. 
 
 BILLIARDS, 
 
 public tables, licences for, 138, 316, 317. 
 
 restrictions as to times of play, 316. 
 
 residents on licensed premises may not play after hours, 316, 
 
 317. 
 
 no appeal for refusal to grant licence, 317. 
 appeal in respect of offences relating to, 317. 
 
 BILLS. See Securities. 
 
 BONDS. See Securities, 
 
 under statutes Oar. II. and Anne, 46, 47, 84, 85. 
 estoppel, operation of, in case of, 89. 
 excluded from 5 & 6 Will. IV. c. 41... 101, 102, 103. 
 effect of such exclusion, 103. 
 
 BOOKMAKERS, 
 
 commission agents frequently are, 189. 
 no statutory definition of, 289. 
 not mentioned in Betting Houses Act, 289. 
 betting at club with other members, 289. 
 
 on racecourse with members of club, 289. 
 
 with all comers, 290. 
 
 receiving deposits in advance, 290. See Setting Houses Act, 
 sub-tit. Place; Illegal User; Clubs. 
 
 BOWLING, 
 
 skill, game of, 136. 
 restrictions on, 43. 
 removal of, 136.
 
 INDEX. 351 
 
 BROKERS ON STOCK EXCHANGE, 
 
 liable to jobbers as principals, 207. 
 
 custom of, to disregard Leeman's Act, 219, 220. 
 
 civil consequences of so doing, 219, 220. See Stock Ex- 
 change; Agency. 
 
 BUCKET SHOPS, 
 
 cover system in, described, 15. 
 
 wagering contracts made in, 14, 17, 18, 19, 20. See Difference 
 
 Transactions. 
 whether within Betting Houses Act, 296. 
 
 BUILDING SOCIETIES, division amongst members by lot, 76, 78, 79. 
 BULLS, speculative buyers, 208. See Stock Exchange. 
 
 CARDS, games of, under 33 Hen. VHE. c. 9... 44. See Games. 
 CARRYING OVER. See Continuations. 
 CHATTELS, supplied for illegal purpose, 114. 
 
 CHEATING AT PLAY, 
 at common law, 35. 
 under 16 Car. IE. c. 7... 45, 46. 
 under 9 Anne, c. 14... 49, 50. 
 renders delictum impar, 119, 120. 
 
 CHEQUE. See Securities. 
 
 CLUBS, 
 
 bond fide for purpose of betting, 293. 
 
 EUesmere Club, 291, 292. 
 
 Albert Club, 292, 293. 
 
 Tattersall's, 294. 
 
 members betting inter se, legal, 291, 292, 293. 
 non-members must not resort there for betting, 293. 
 commission agents, user by, 295. 
 
 disguise of a betting house, 294. 
 
 when kept for betting business by proprietor, 294. 
 unla-wful gaming in. See Gaming Houses. 
 
 COCK-FIGHTING, 
 
 legality, at common law, questionable, 60. 
 keeping place for, nuisance at common law, 60. 
 statutory prohibitions, 60, 61. 
 penalties, 60. 
 
 CocK-PiT, nuisance at common law, 60. 
 
 COMMISSION AGENTS, 
 
 frequently bookmakers in fact, 189. 
 when lawful business, 295. 
 
 partnership in. See Partnership in Void Wagering Trans- 
 actions. 
 
 must not receive deposit in advance. See Setting Houses Act, 
 See also Agents.
 
 352 IXDEX. 
 
 COMMITMENT ON REMAND, form of, 339. 
 
 COMMON NUISANCE, 
 betting houses, 261. 
 gaming houses, 39, 40, 239, 240. 
 cock-pit, 60. 
 lotteries, 326. 
 
 COMPETITIONS, 
 
 missing word, 71. 
 
 selecting winners of coming horse race, 74, 75. 
 
 CONSIDERATION, 
 
 in wagering contracts, 1, 27, 28. 
 
 illegal. See Securities; Statute 5 & 6 Will. IV. c. 41. 
 
 pleading. See Illegality. 
 in part illegal, vitiates whole, 96, 115. 
 where void and not illegal, 143. 
 
 CONSPIRACY, rigging the market, 214, 215. 
 
 CONSTRUCTION, 
 questions of 
 
 in sporting contracts 
 
 jurisdiction of stewards, 151. 
 determination of, by Court, 154. 
 technical terms, 154. 
 waiver of terms, 146, 147. 
 
 CONSTRUCTIVE KNOWLEDGE, 
 
 of illegality in securities, 307. 
 
 of licensed person. See Gaming on Licensed Premises. 
 
 CONTANGO, 
 
 what is, 209. 
 occasion for, 209. 
 
 CONTINUATIONS, 
 what are, 208. 
 how effected, 209. 
 contango, 209. 
 backwardations, 210. 
 
 CONTRIBUTIONS TO PRIZES, within sect. 18, 8 & 9 Viet. c. 109... 156 
 et seq. 
 
 CONVICTION, 229, 230. See Criminal Procedure. 
 CONVICTION FOR PENALTY, form of, 340. 
 COPARCENERS, division amongst, 75. 
 
 COVER, 
 
 system in bucket-shops, 15. 
 recovery of, on rescission, 173, 174. 
 
 COYTING, 
 
 game of skill, 136. 
 restrictions on, 43. 
 removal of, 136.
 
 INDEX. 353 
 
 CRICKET, within 16 Car. n. c. 7 ; 9 Anne, c. 14... 51. 
 
 CRIMINAL PROCEDURE. 
 Summary jurisdiction, 
 
 statutes conferring, 222. 
 information, 222 et seq. 
 definition of, 223. 
 
 precise statement of offence in, 223. 
 initial step in proceedings, 223. 
 not necessarily in -writing, 223. 
 facts to be stated, 223. 
 autrefois acquit, 223. 
 convict, 224. 
 
 must not be alternative, 224. 
 must relate to one offence only, 224. 
 one offence to be tried at a time, 225. 
 summons, 
 
 states offence as in information, 225. 
 requires defendant's appearance, 225. 
 granted by magistrate who hears information, 226. 
 warrant, 
 
 when issued, 225. 
 irregularity, 
 
 in information or summons, 225. 
 effect of appearance on, 225, 226. 
 
 protest made on, 226, 227. 
 instances of, 225, 226, 227. 
 adjournment, 
 
 variance between charge and evidence, 225, 229. 
 conviction, 229 et seq. 
 parts of, 
 
 i. recitals, 229. 
 
 ii. " guilty" (i.e., conviction), 229. 
 iii. adjudication, 230. 
 offence to be precisely described in, 230. 
 separate convictions for separate offences preferable, 
 
 230. 
 
 amend, power to, under Baines' Act, 230. 
 autrefois convict or acquit, 230 et seq. 
 plea of, 230. 
 proof of, 230. 
 what will support, 231. 
 common law rule, 231, 232. 
 appeals, 
 
 given by Act creating offence, 232. 
 
 given by sect. 19, Summary Jurisdiction Act, 1879... 
 
 232. 
 
 regulations for exercise, 232. 
 decision confirmed, modified, or reversed, 232. 
 adjudication, may be altered on, 233. 
 
 instance of, 233. 
 conviction quashed in absence of respondents, 233. 
 
 G. A A
 
 854 INDEX. 
 
 CKIMINAL PROCEDURE continued. 
 Summary jurisdiction continued. 
 special cases, 
 
 under -what statutes, 233. 
 decision of questions of law, 233. 
 
 instance of, Albert Club Case, 234. 
 no appeal by, on question of fact, 234. 
 instance of, Newmarket Case, 234. 
 magistrates 
 
 acting corruptly, remedy, 235. 
 
 Proceedings by indictment, 
 
 trial by jury, 
 
 right exists, when, 235. 
 election of defendant, 235. 
 defendant must be informed of right, 235. 
 when claimed, procedure, 235 et seq. 
 duty of magistrates, 236. 
 disclosure of any indictable offence, 236. 
 bail, 236. 
 
 evidence at hearing must cover counts in indict- 
 ment, 236. 
 
 applications to add counts, 236. 
 Vexatious Indictments Act, 236. 
 
 applies to keeping gaming-house, 236. 
 prevents presentation of bill to grand jury 
 
 without previous hearing, 236. 
 amended by stat. 30 & 31 Viet. c. 35, s. 1, 
 
 237. 
 
 counts added under, 237. 
 indictment, 
 
 instance of, under Betting Houses Act, 237, 238. 
 
 CBOTJPIER, 
 
 acting in gaming-house, liability of, 244. 
 
 DEATH, 
 
 of principal in wagering contract, 
 
 effect of, on rights to deposits, 172, 173. 
 on wagers lost, 172, 173. 
 on pending wagers, 172, 173. 
 terminates agency, 176. 
 
 DEFENDANT, 
 
 summons to, form of, 335. 
 
 warrant for apprehension of, form of, 336. 
 
 See Criminal Procedure. 
 
 DELICTTJM, 
 
 par, test of, .121. 
 
 impar, on account of fraud, 120. 
 
 of statutory provisions, 120. 
 examples, 120, 121, 266. 
 action maintainable when impar, 120 et seq.
 
 INDEX. 355 
 
 DEPOSITS, 
 
 on wagering contracts, 
 recovery of, from, 
 
 other principal, possible when, 171, 172, 173, 174. 
 personal representative of other principal, 172, 173. 
 stakeholder, on rescission, 190, 191, 192, 193. 
 
 distinguished from winnings, 194. 
 
 plates, prizes, or added money, 155 
 
 164. 
 
 made in pursuance of illegal transactions, 
 recovery of, 
 
 on rescission, when possible, 116, 117, 118, 119. 
 by oppressed from oppressor, 119, 120. 
 where delictum impar, 120, 121, 266. 
 
 secus, where delictum par, 122, 123. 
 
 from stakeholder on rescission, 127, 128, 129. 
 
 criminal offences relating to, 264, 265. See Betting Houses Act. 
 
 DICE, 
 
 games of, under 33 Hen. VIII. c. 9... 44. 
 illegal, 67, 322, 333. 
 
 except backgammon, 67, 322, 333. 
 
 DIFFERENCE TRANSACTIONS, 
 
 description of, 12. 
 when wagers, 
 
 mutual intention of parties, 12, 13. 
 
 test, 13, 14, 15. 
 
 evidence of intention, 
 course of dealing, 13. 
 documents may be fictitious, 14, 15, 18. 
 documents to be read together, 19. 
 
 question for the jury, 13. 
 in bucket shops, 
 
 cases on, 14, 17, 18, 19, 20. 
 on Stock Exchange, 
 
 result of speculative sales and purchases, 8, 9, 208 et 8e%. 
 
 forbidden by rules when wagers, 109, 207, 210. 
 relation to, 
 
 options, 212, 213. 
 
 sale of prospective dividends, 213, 214. 
 sometimes called time bargains, 
 
 user of terms, 11. 
 
 DIVIDENDS, 
 
 sale of prospective, 7. 
 valid at law, 7, 214. 
 
 forbidden by rules of Stock Exchange, 213. 
 division of, by lot, 77. 
 
 ENTRANCE MONEY, 154. 
 
 AA2
 
 356 INDEX. 
 
 ESTOPPEL, 
 
 rule of evidence not cause of action, 201,. 
 remedial operation of, in relation to, 
 
 bonds, mortgages, 88, 89, 101. 
 
 payments of wagering debts by third person, 201. 202. 
 of agent by accounts rendered, 189. 
 
 EVENT, UNCERTAIN, past or future, 2, 3. 
 
 EXCESSIVE GAMING, 
 
 securities for, under 16 Car. IE. c. 7, and 9 Anne c. 14... 46, 
 
 47, 48. 
 
 See Gaming, Statutory Provisions, 45 48, 55, 138. 
 See Gaming Houses, sub-tit. Unlawful Gaming, 35 38, 164, 
 241. 
 
 EXECUTOR. See Personal Representative. 
 
 FIXTURES (EACE MEETINGS), date of, " moveable feast," 154. 
 FOOT-RACE, within 16 Car. II, c. 7; 9 Anne c. 14... 51. 
 FOREIGN LOTTERIES, 68, 321, 325. 
 
 FORMS, 
 
 example of information, 333. 
 search warrant, 334. 
 summons to defendant, 335. 
 
 witness, 335. 
 
 warrant for apprehension of defendant, 336. 
 witness, 338. 
 
 in first instance, 338. 
 commitment on remand, 339. 
 conviction for penalty, 340. 
 notice of appeal, 341. 
 recognizance of appellant, 342. 
 special case, 343. 
 
 FRAUD. See Cheating at Play. 
 FUTURES, sale of future crops, &c., 6, 7. 
 
 GAMES, 
 
 all lawful at common law, 34. 
 
 question as to cock-fighting, 60. 
 within 16 Car. II, c. 7, and 9 Anne, c. 14... 45. 
 of skill, skill and chance, chance, 45. 
 instances of, 50, 51. 
 unlawful, 
 
 within meaning of 33 Hen. VIII. c. 9, 
 
 included games of skill (except archery), 43. 
 of skill and chance, 43. 
 of chance, 43.
 
 INDEX. 357 
 
 GAMES continued. 
 
 unlawful continued. 
 
 within meaning of 33 Hen. VIII. c. 9, as repealed by 8 & 
 
 9 Viet. c. 109... 136, 256. 
 includes games of skill and chance, 256, 257. 
 e.g., baccarat, 257. 
 
 chemin de fer, 257. 
 games of chance, 164, 257. 
 within the Lottery Acts, 
 
 includes all kinds of lotteries, 6279, 319324. 
 includes specific games of chance, 
 ace of hearts, 66, 322. 
 pharaoh, 66, 322. 
 basset, 66, 322. 
 hazard, 66, 322. 
 passage, 67, 322, 323. 
 roulet, 67, 322, 333. 
 dice, 67, 322, 333. 
 because of cruelty, 
 
 cock-fighting, &c., 60, 61. 
 lawful, 
 
 games of skill, 164, 256. 
 
 within the proviso of sect. 18 of 8 & 9 Viet. c. 109... 164. 
 
 may be used for unlawful gaming, 258. 
 
 See Gaming Houses, sub-tit. Unlawful Gaming; Gaming 
 on Licensed Premises. 
 
 GAMING, 
 
 playing a game for money, 38. 
 
 contracts by way of, valid at common law, 35. 
 
 question, when stakes excessive, 35, 36, 37, 241, 242. 
 cheating at, indictable at common law, 39. 
 statutory provisions as to, 
 
 fraudulent and excessive, 45 et seq. 
 statute 16 Car. II. c. 7... 45, 46, 47. 
 aim of, 45. 
 penalties on dishonest, 46. 
 
 honest but excessive, 46. 
 above limit, contracts and securities void, 46. 
 statute 9 Anne, c. 14, 
 
 extended 16 Car. IE. c. 7... 47. 
 avoided all securities, 47. 
 penalty on excessive play, 48. 
 limit, 49. 
 
 fraudulent gaming, 50. 
 living by gambling, 50. 
 quarrels at gaming, 50. 
 transactions within 16 Car. II. and 9 Anne, 
 games, sports, and pastimes, 50. 
 examples 
 
 horse races, 51. 
 cricket, 51. 
 foot race, 51.
 
 858 INDEX. 
 
 GAMING continued. 
 
 statutory provisions as to continued. 
 
 transactions within 16 Oar. II. and 9 Anne continued. 
 wagers on sides or hands of players, 52. 
 
 not on collateral matter, 52. 
 wagers under limit valid, 53. 
 money lent for gaming, 53. 
 
 for payment of existing debt, 55. 
 statute 18 Geo. II. c. 34, 
 limit lowered by, 55. 
 
 repeal of 16 Car. II. c. 7 ; 9 Anne c. 14 ; 18 Geo. II. c. 34, 
 how far, 138. 
 
 gaming and wagering generally, 
 the statute 8 & 9 Viet. c. 109, 
 
 occasion for, 136. See Gaming Houses ; Billiards. 
 
 policy of fixing limit abandoned, 139. 
 
 all contracts by way of gaming and wagering null 
 
 and void (sect. 18), 139. 
 winnings cannot be recovered, 139. 
 construction of sect. 18... 140. 
 ambit of sect. 18... 141. 
 construction of proviso of sect. 18... 145. 
 incidental questions, 
 
 winner, who is, 145, 155. 
 agreement to be considered* 145. 
 waiver of terms, 146, 147. 
 stamp required, 147. 
 disputes as to winner, 147. 
 jurisdiction, 148, 151, 152, 153. 
 disputes settled, by whom, 148, 149. See 
 
 Stewards, 
 
 disputes settled by Court, 154. 
 winner may recover plate, &c., 156. 
 subscription of competitors, 157, 158, 
 
 159, 160, 161, 162, 163, 164. 
 games, &c., must be lawful, 164. 
 
 See Void Transactions. 
 the Gaming Act, 1892, 
 
 amends 8 & 9 Viet. c. 109... 198. 
 
 effect of, 198, 199. 
 
 not retrospective, 199. 
 
 payments in respect of gaming and wagering debts, 
 
 199, 200. 
 
 loans by third persons, 202, 203. 
 recovery of winnings from agents, 203, 204. 
 recovery of deposits on rescission, 204, 205. 
 partnership, how affected by, 205, 206. 
 
 unlawful, when and how, 
 
 See Gaming Houses, 253 2o8. 
 See Gaming on Licensed Premises, 305 tt sec[. 
 See Gaming in Public Places, 317, 318. 
 See Setting Houses Act, 260 et seq.
 
 INDEX. 359 
 
 GAMING HOTTSES. See also Betting Houses Ad. 
 common, definitions of, 255. 
 indictable nuisances, 39, 40, 239. 
 indictment for keeping, 39, 40, 239, 240. 
 general description in, 239, 240. 
 instances of, 240. 
 
 external indications not necessary, 41, 240, 241. 
 common law misdemeanor remains, 243. 
 statutory provisions relating to offences 
 under 33 Hen. VIII. c. 9, 
 
 Offence (A) keeping common house for playing un- 
 lawful games, 242. 
 
 Offence (B) using and haunting such house, 243. 
 Offence (C) class restrictions, 243. 
 under 8 & 9 Viet. c. 109, 
 
 Offence (D) common gaming-house, 
 liability of owner or keeper, 244. 
 
 person having care of, 244. 
 banker croupier, 244. 
 assistant, 244. 
 under 17 & 18 Viet. c. 38, 
 
 Offence (F) liability of person who wilfully prevents 
 
 entry, 249. 
 secures external 
 or internal door, 
 249. 
 
 uses any obstruc- 
 tive contrivance, 
 249. 
 Offence (Q) refusal of name and address, 249, 250. 
 
 giving wrong name and address, 250. 
 Offence (H) place kept for purpose of unlawful gaming, 
 
 250. 
 liability of owner, &c., 250. 
 
 of manager or assistant, 250. 
 of person lending money, 250. 
 of owner for wilfully permitting, 250. 
 executive powers under foregoing statutes, 
 search, power of, 
 
 under 33 Hen. VHL c. 9... 243. 
 2Geo. H. c. 28, s. 9... 243. 
 8&9 Viet. c. 109... 245, 246. 
 search warrants, 
 
 outside metropolitan area, 245. 
 issue of, 245. 
 power under, 246. 
 form of, 247, 334. 
 within metropolitan area, 
 
 2&3 Viet. c. 47, s. 48... 246. 
 
 now under 8 & 9 Viet. c. 109, s. 687... 247. 
 
 power under, 247. 
 evidence, provisions as to, 
 
 witnesses obtaining, 248, 251. 
 indemnity of, 248251.
 
 860 INDEX. 
 
 GAMING HOUSES continued. 
 
 evidence, provisions as to continued. 
 
 of user for playing unlawful games, 137, 247. 
 keeping a bank, 137, 247. 
 chances unequal, 137, 247. 
 instruments of gaming, 
 
 cards, dice, balls, &c., 248. 
 destruction of, 248. 
 books not included, 268. 
 
 wilful obstruction of officer, 250. 
 barring access, 250. 
 
 alarms, contrivances for concealing, 250. 
 not necessary to prove person playing for stake, 248. 
 open to subscribers only, 247. 
 penalties, 
 
 levy of, 248, 251. 
 informal distress, 248, 252. 
 application of, 
 
 outside metropolitan area, 
 moiety to informer, 251. 
 moiety to poor-rate, 251. 
 within metropolitan area, 
 moiety to informer, 251. 
 moiety to receiver under Metropolitan Police Act, 
 
 251. 
 appeals from summary convictions, 
 
 right of appeal under 8 & 9 Viet. c. 109, 248. 
 17 & 18 Viet. c. 38, 252. 
 
 no objection on ground of informality, 249, 252. 
 certiorari not to be issued, &c., 249, 252. 
 certiorari lies to quash order made without jurisdiction, 269. 
 
 See Criminal Procedure, sub-tit. Appeals. 
 questions of law arising out of the statutory offences, 252 260. 
 keeping, what constitutes, 253. 
 by way of business, 253. 
 systematic user, 253. 
 unlawful gaming, 
 
 one purpose inter alia, 253, 254. 
 what constitutes, 255, 256, 257. 
 illegality from game played, 255, 256. 
 examples : ace of hearts, 255, 256. 
 pharaoh, 255, 256. 
 basset, 255, 256. 
 hazard, 255, 256. 
 passage, 255, 256. 
 roulet, 255, 256. 
 
 dice (other than backgammon), 255, 256. 
 illegality, from the place wherein played, 
 
 (a) games of chance unlawful within 33 Hen. VIII. 
 
 c. 9 ..256, 257. 
 baccarat chemin de fer, 257. 
 
 (b) lawful games, 258. 
 
 any game, anywhere, if stakes excessive 
 question as to, 35, 36, 37, 38, 164, 241.
 
 INDEX. 361 
 
 GAMING HOUSES continued. 
 
 questions of law arising out of the statutory offences contd. 
 common not public gaming house, 247, 254, 255. 
 "place," meaning of, 270 286. See Betting Houses 
 
 Ad. 
 players or haunters, 
 
 liability for playing, 243, 258, 259. 
 managers, 
 
 liability of, 244, 246, 250. 
 
 ex-committee of club, 258. 
 partnership in gaming house, 130 135. See Partnership. 
 
 GAMING ON LICENSED PREMISES, 
 provisions of the Licensing Act, 
 offences against public order, 
 licensed person, 
 
 (1) suffering gaming or unlawful games on his 
 
 premises, 305. 
 
 (2) infringing the Betting House Act, 305. 
 supplemental to Betting House Act, 306. 
 
 but no dual punishment, 306. 
 
 question whether licensed person subject to absolute 
 or qualified liability, 306312. 
 
 (1) construction of section, 
 
 suffers equivalent to permits, 306, 307. 
 "knowingly" omission of, 306, 307. 
 
 (2) authorities on, 
 
 absence of knowledge, actual or construc- 
 tive on part of licensed person or 
 his servants, 307. 
 example, 307, 308. 
 constructive knowledge of responsible 
 
 servants, 308, 309. 
 e.g., " landlady or person in charge," 
 
 308, 309. 
 
 " boots," 309, 310. 
 " man in charge of skittle alley," 
 
 ni. 
 
 knowledge of servant to whom no authority 
 
 delegated, 310. 
 e.g., "potman," 310. 
 conclusion, liability qualified only, 312. 
 licensed person may not game with private friends, 
 
 313, 314. 
 immaterial that the stake be not money but the 
 
 equivalent of money, 314. 
 e.g., ten pins for beer, 314. 
 
 puff and dart for rabbit, 315. 
 appeal by person aggrieved, 315. 
 owner not such person, 315. 
 owner, how protected, 315. 
 conviction may be recorded on licence, 306. 
 billiards and bagatelle, under 8 & 9 Viet. c. 109. 
 
 regulations as to public places for playing at, 316. 
 power to license public places, 316.
 
 362 INDEX. 
 
 GAMING ON LICENSED PEEMISES continued. 
 billiards and bagatelle continued. 
 licence necessary, 316. 
 innkeepers do not require licence, 316. 
 times of play, restrictions as to, 316. 
 residents on licensed premises may not play after hours, 
 
 316, 317. 
 
 no appeal from refusal to grant licence for, 317. 
 appeal from conviction as to playing, 317. 
 
 GENTLEMAN EIDEE, meaning of, 154. 
 
 GUARANTEE, contracts of, distinguished from wagers, 5. 
 
 HAZARD, 
 
 illegal game, lottery, 66, 255, 256, 322. 
 offences relating to, 66, 322. 
 
 HAZARDOUS SPECULATION, sanction on, under Bankruptcy Acts, 
 215, 216. 
 
 HOLDER IN DUE COURSE, 93. 
 title derived through, 93, 95. 
 presumption, 93. 
 See Securities. 
 
 HORSE EACES, 
 
 history of statutes relating to, 56, 57, 58, 59. 
 within 16 Car. II. c. 7 ; 9 Anne, c. 14... 51. 
 restrictions on, by 13 Geo. II. c. 19... 56. 
 
 repealed, 57. 
 
 now in force, 59. 
 definitions of, 59. 
 licence to hold (metropolitan), 58, 59. 
 
 HOTEL, 307. See Gaming on Licensed Premises. 
 HOUSES, illegal sale of, by lottery, 65, 66, 320322. 
 HUNTED EEGULARLY, meaning of, 154. 
 
 ILLEGAL BETTING. See Betting Houses Act. 
 
 ILLEGAL TRANSACTIONS, 
 
 civil obligations, 107 et seq. 
 general rule, 107, 108. 
 exceptions 
 
 on rescission, 116, 117, 118, 119. 
 oppressor and oppressed, 119, 120. 
 delictum impar, 120 123. 
 
 See Agents ; Stakeholder; Partnership; Rescission; 
 
 Trusts ; Consideration ; Securities. 
 
 criminal liability. See Setting Houses Act; Gaming Houses; 
 Gaming on Licensed Premises; Gaming in Public Places; 
 Lottery Offences ; Indictments; Criminal Procedure.
 
 INDEX. 363 
 
 ILLEGALITY, 
 
 classification of, 108. 
 mala in se, 108. 
 mala prohibita, 108. 
 pleading 
 
 facts to be stated, 115, 116. 
 examples 
 
 in actions on bills and notes, 94. 
 effect of not traversing, 94, 95. 
 
 in consideration. See Securities. ', 
 
 vitiating effect, 107. 
 
 extent of, 109. 
 illustrated by 
 
 illegal stock jobbing transactions, 109. 
 illegal partnership, 110. 
 bond given subsequently, 110, 111. 
 substituted securities, 84. 
 subsequent, relating back 
 examples 
 
 loan for illegal purpose, 112, 113, 124, 
 rooms let for illegal purpose, 113. 
 notice of 
 
 constructive, 95. 
 illustrations of, 96, 97. 
 
 INDICTMENTS, 
 
 cheating at play, 39. 
 
 common gaming houses, 39, 40, 41, 239, 240. 
 
 description of, in, 239, 240. 
 cockpits, 60. 
 lotteries, 63. 
 claim to be tried by, 235. 
 
 procedure, when the right is exercised, 236, 237, 238. 
 
 INFANTS, 
 
 soliciting to bet, 302, 303. 
 
 members of universities or schools, 303. 
 
 INFORMATIONS, 
 form of, 333. 
 See Criminal Procedure, 222 225. 
 
 INSTRUMENTS OF GAMING, 
 what are, 248. 
 
 do not include books of account, 268. 
 removal and destruction of, 248. 
 effect of finding, on suspected premises, 248. 
 
 INSURANCE, 
 
 marine, fire, 22. 
 
 are contracts of indemnity, 22, 23. 
 
 must be interest in respect of which actual loss may be 
 
 sustained, 23, 24. 
 life- 
 definition of, 25. 
 a series of wagers, 26. 
 Gambling Act, 26.
 
 364 INDEX. 
 
 IRREGTJLARITY, in initiating criminal proceedings, 225 227. See 
 Criminal Procedure. 
 
 JOBBERS ON STOCK EXCHANGE, 
 
 treat brokers as principals, 207. 
 
 no business directly with non-members, 207. 
 
 operations of, 207. 
 
 disregard Leeman's Act, 218, 219. See Stock Exchange. 
 
 JUDGMENTS, voluntary, 46, 47, 84. 
 
 KEEPING. See Gaming Houses ; Betting Houses Act ; Cock-fighting. 
 
 LEEMAN'S ACT, 217 et seq. See Bank Shares. 
 
 LETTER, resorting by, 291. 
 
 LICENCE, recording conviction on, 305. 
 
 LICENSED PREMISES, 305. See Gaming on Licensed Premises. 
 
 LIMIT, 
 
 policy of fixing, introduced, 45. 
 affirmed, 47, 55. 
 abandoned, 56, 139. 
 
 LISTS. See Advertising, Betting Lists. 
 LITTLE GOES, 68, 324. See Lotteries. 
 
 LOSSES, 
 
 in illegal transactions, 
 
 agent cannot recover payments, 124. 
 contribution amongst partners in, none, 130- 
 
 in void transactions, 
 
 no obligation to pay, 
 
 payments irrecoverable, 165. 
 
 LOTTERIES, 
 
 public, effect of, 62. 
 
 abolition of, 68. 
 definition of, 69. 
 classes of, examples, 
 sweepstakes, 70. 
 missing word, 71. 
 eastern bazaar, 72. 
 prize packets, 73. 
 
 existence of prize not advertised, 74. 
 where skill required not lotteries, e.g., selecting winner of 
 
 horse race, 74, 75. 
 division amongst co-parceners, 75. 
 
 members of building society, 77, 78, 79. 
 disguises of, offices for sales, 64, 66. 
 games of chance, deemed to be, 
 ace of hearts, 66, 322.
 
 INDEX. 365 
 
 LOTTERIES continued. 
 
 games of chance, deemed to be continued. 
 basset, 66, 322. 
 hazard, 66, 322. 
 pharaoh, 66, 322. 
 passage, 67, 322. 
 dice, 67, 322. 
 
 backgammon excepted, 67, 322. 
 roulette, 67, 323. 
 art unions legal, sub modo, 69. 
 statutory restrictions, series of, 62, 63, 319, 325. 
 declared nuisances, 63, 319, 326. 
 prohibition of keeping, 63, 66, 319, 326. 
 penalty for keeping, 63, 319. 
 penalty for playing, 319, 322. 
 penalty for advertising, 64, 319, 320, 327. 
 sales of gloves, 64, 320. 
 sales of tickets in public lotteries, 64. 
 sales of houses, &c., 65, 320. 
 
 contributing to such lottery, 320. 
 foreign lotteries, 
 
 setting up, 65, 321. 
 
 advertising, 65, 321. 
 
 sale of tickets, 65, 321. 
 
 receipt of money, 321. 
 roulette, 67, 323. 
 
 keeping place for, 323. 
 
 permitting play, 323. 
 
 liability of players, 323. 
 42 Geo. in. c. 119, 
 
 little goes, 68, 324. 
 
 keeping place for lottery, 68, 324. 
 
 suffering lotteries, 68, 324. 
 
 executive powers, 68, 324. 
 
 employer, 68, 325. 
 
 agreement to pay money, 68, 325. 
 
 advertising, 68, 325. 
 advertising foreign lotteries, 68, 325. 
 indictments, 326. 
 informations for penalties, 
 
 for keeping a place, 326, 327. 
 exercisiiig or setting up, 328. 
 permitting, 328. 
 plaving, 328. 
 assisting, 328. 
 advertising, 328. 
 
 information as rogue and vagabond, 329. 
 jurisdiction of magistrates, 328, 329. 
 appeal against summary conviction, 330. 
 application of penalties, 329. 
 
 MAGISTRATES, 222 et seq. Seo Criminal Procedure. 
 MALA IN SB. See Illegality.
 
 <366 INDEX. 
 
 MALA PEOHIBITA. See Illegality. 
 
 MANAGER, 
 
 criminal liability. See Gaming Houses; Betting Houses Act; 
 
 Lottery Statutes. 
 civil obligations. See Agent. 
 
 METROPOLITAN POLICE DISTRICT, 317, 318. See Betting in Public 
 
 Places. 
 power of search, 267. 
 
 MISSING WORD, lotteries, 71. 
 
 MONEY LENT, 
 
 gaming, &c., for, 16 Car. II. c. 7 ; 9 Anne, c. 14... 58. 
 
 payment of gambling debt, 55. 
 
 illegal purpose, for, 112, 113, 124. 
 
 by winner of wager to loser, 165. 
 
 post Gaming Act, 1892... 202, 203. 
 
 in gaming house, liability of lender, 250. 
 
 MONEY RECEIVED TO TJSE or, 
 
 liability of agent to principal for, 
 
 in illegal transactions, 125, 126, 127. 
 in void wager, 186, 187, 188, 189. 
 since Gaming Act, 1892... 203, 204. 
 
 MORTGAGES, 
 
 legal, elements of, 85. 
 
 assignability of, 85, 87, 88, 97, 98, 99. 
 
 effect of statutes, 16 Car. II. c. 7, and 9 Anne, c. 14... 47, 54, 86. 
 
 how far repealed, 
 
 modified by estoppel, 88. 
 effect of 5 & 6 Will. IV. c. 41, 
 
 illegal considerations, difficulty, 100, 101. 
 power of sale, exercise of, 101. 
 void considerations for, 169. 
 
 rights of mortgagor, delivery up of security, 170. 
 See Securities. 
 
 NEWMARKET, 
 
 exemption from horse racing restrictions, 57. 
 moveable feast, 154. 
 
 NOTES, 
 
 effect of statutes of 16 Car. II. c. 7, and 9 Anne, c. 14... 80, 81. 
 
 hardship of, 90, 91. 
 
 effect of statute 5 & 6 Will. IV. c. 41... 91 et seq. 
 codification by Bill of Exchange Act, 93 et seq. See Securities. 
 
 NOTICE, illegality of, what amounts to, 95, 96, 97. 
 
 NUISANCES. See Common Nuisances.
 
 INDEX. 367 
 
 OCCUPIER. See Setting Homes Act; Gaming Houses. 
 
 OFFICES, for sale of re-disguising lotteries, 64, 66. 
 
 OFFICIAL ASSIGNEE. See Assignee. 
 
 OPPRESSED, right^against oppressor in illegal transactions, 119, 120. 
 
 OPTIONS, 
 
 nature of, 212. 
 
 puts and calls, 212. 
 
 continuation of puts and calls, 213. 
 
 grantor of, not entitled to shares, &c., 213. 
 
 contract for sale of, may be wager, 213. 
 
 PACKETS with prizes, lotteries, 73. 
 PARTITION, by lot, 67. 
 
 PARTNERSHIP, 
 
 in illegal transactions 
 
 general rule, no action, 130. 
 validity of collateral contracts, 130. 
 rights of partners inter se, 130. 
 
 losses paid, no contribution, 130. 
 
 profits received, no shares, 130. 
 
 no action of account maintainable, 131. 
 
 Sharp v. Taylor considered, 131 et seq, 
 
 personal representative of deceased partner liable to 
 
 account to beneficiaries, 135. 
 in void wagering transactions 
 rights of partners inter se 
 
 recovery of share of winnings, 188, 195, 196. 
 
 instances of, 194. 
 
 account stated, action on, at law, 195. 
 
 why maintainable, 195. 
 cheque given by one partner to another for winnings, 
 
 195, 196. 
 
 dissolution of, action for, in Chancery Division, 197. 
 probable effect of Gaming Act, 1892, on, 205, 206. 
 legality of, recognized, 195, 196. 
 
 PASSAGE, 
 
 illegal game, lottery, 67, 255, 256, 322. 
 offences, 66, 322. 
 
 PAYMENT, 
 
 by personal representative, 166. 
 of debt by wager, 170. 
 
 by third persons in respect of wagering contract, 199, 200. 
 estoppel, remedial effect of, 201, 202.
 
 368 INDEX. 
 
 PENALTIES. See Statutes. 
 
 PERSONAL KEPRESENTATIVE, 
 
 of partner in illegal transactions, accountable to beneficiaries, 
 
 135. 
 of principal to wagering contracts, liable for what deposit, 
 
 172 et seq. 
 payment by, 166. 
 
 PHARAOH, 
 
 illegal game, lottery, 66, 255, 256, 322. 
 offences, 66, 322. 
 
 " PLACE." 
 
 See Gaming Houses, 243, 258, 259. 
 See Setting Houses Act, 270 et seq. 
 examples, 
 
 table, 271. 
 
 inclosure, 272. 
 
 umbrella, 274. 
 
 a field, 277. 
 
 a cricket ground, 279. 
 
 wooden box, 281. 
 under Lottery Acts, definition, 327. 
 
 "PLATE," what is, 156, 158. 
 
 " PLAY OR PAY," meaning of, 154. 
 
 PLAYERS. 
 
 See Gaming House, 243, 258, 259. 
 See Setting House, 267. 
 See Lotteries. 
 
 PLEADING, illegality, 94, 95, 116. 
 PRIZE, what is, 156. 
 
 PROCEDURE. 
 
 See Criminal Procedure, 222 et seq. 
 1 as to securities for illegal consideration, 104. 
 
 "PROFESSIONAL BETTING MAN," 288. 
 
 PUBLIC-HOUSE, 305 et seq. See Gaming on Licensed Premises. 
 
 PUBLIC LOTTERIES ABOLISHED, 68. 
 
 PUBLIC ORDER, 305. See Gaming on Licensed Premises. 
 
 PUBLIC PLACES, GAMING IN, 318. 
 
 PUBLIC POLICY, 
 
 effect of, on wagers, 32, 33. 
 uncertainty of, 32, 33.
 
 INDEX. 369 
 
 EACE-COTrRSE, 
 
 licence for, 58, 59. 
 
 betting on. See Betting Houses Act, sub-tit. Place. 
 
 EACING TIPS, not illegal to advertise, 300. 
 
 HEADY-MONEY BETTING. See Deposits; Betting Houses Ad; Com- 
 mission Agent. 
 
 EECOGNIZANCE OF APPELLANT, form of, 342. 
 EEFEREE. See Stewards. 
 
 EESCISSION. See Stakeholders. 
 in illegal transactions, 116. 
 
 right of, until, when, 117, 118, 119. 
 in void wagering transactions where no agent, 171 et seq. 
 
 where agent employed, 190 et seq. 
 
 since Gaming Act, 1892... 204, 205. 
 
 EESORTING, no, by letter or telegram, 291. 
 
 " EIGGING THE MARKET " criminal conspiracy, 214. 
 
 EOGUES AND VAGABONDS, who punishable as such, 68, 318, 329, 
 330. 
 
 EOOMS let for illegal purpose, 113. 
 
 EOTJLETTE, 
 
 illegal lottery, 67, 256, 257, 323. 
 offences, 67, 323. 
 players at, 323. 
 
 EOYAL PALACES, exemption of, in lottery statutes, 67. 
 
 SALES AND PURCHASES. See Wagering Contracts ; Difference Trans- 
 actions ; Bucket Shops ; Stock Exchange. 
 conditional as to price not wagers, 5. 
 of "futures" formerly invalid, 6. 
 
 now valid, 7. 
 when time bargains, 11. 
 options, puts and calls, of, 212, 213. 
 prospective dividends, of, 7, 213, 214. 
 conducted on the Stock Exchange, 207 et seq. 
 
 in bucket shop, 15 et seq. 
 
 fictitious, in difference transactions, 11 et seq. t 210, 211. 
 lotteries, disguised as, 64, 66. 
 ancillary to, 73, 74. 
 
 SEARCH WARRANT, form of, 334. 
 
 G. B B
 
 370 INDEX. 
 
 SECURITIES, 
 
 statutory provisions as to 
 the statutes 16 Car. c. II. 7, and 9 Anne, c. 14 
 sections of, cited, 46,. 47. 
 what securities are within 
 
 for payment of money won by gaming or wagering 
 
 at 
 
 cards, 47. 
 dice tables, 47. 
 tennis, 47. 
 bowles, 47. 
 
 or other game or games, 47. - 
 games within statute, 50. 
 cricket, 51. 
 foot-racing, 51. 
 horse-racing, 51. 
 for money won by betting on sides or hands of players 
 
 at such games, 47. 
 for repayment of money knowingly lent for such 
 
 gaming or betting, 47. 
 for money lent or advanced at the time and place of 
 
 such play to persons gaming or betting, 47. 
 all such securities null and void, 46, 47, 80. 
 null and void securities illustrated 
 i. Notes and bills of exchange, 80 et seq. 
 negotiability destroyed, 80. 
 "bond, fide, holder for value, hardship on, 80. 
 
 action on indorsement, 81. 
 cases illustrating, 81, 82, 83, 84. 
 second security substituted for original, 84. 
 ii. Judgments, voluntary only, 84. 
 iii. Bonds, 84, 85. 
 iv. Mortgages, 85. 
 
 assignability, 85, 87. 
 examples, 86. 
 divesting estate, 88. 
 estoppel 
 
 remedial operation of, 88. 
 bonds, 89. 
 
 grantor of null security, usual relief, 89, 90. 
 the statute 5 & 6 Will. IV. c. 41 
 
 operates on same securities as earlier ones, 90. 
 such securities deemed to be for illegal consideration, 91. 
 securities for illegal consideration 
 i. Notes and bills of exchange, 92 et seq. 
 cheques included, 97. 
 onus of proof of illegality, 92. 
 codification by Bills of Exchange Act, 1882 
 holder in due course, 93. 
 defective title, 93. 
 person claiming through holder in due course, 
 
 93. 
 exemplified, 95.
 
 INDEX. 371 
 
 SECURITIES continued. 
 
 statutory provisions as to continued. 
 
 the statute 5 & 6 Will. IV. c. 41 continued. 
 
 securities for illegal consideration continued. ' 
 i. Notes and bills of exchange continued. 
 presumptions 
 value, 93. 
 
 holder in due course, 93. 
 good faith, 94. 
 honesty, 95. 
 pleading illegality, 94. 
 shifting onus, 94. 
 
 plea of illegality not traversed, 94, 95. 
 notice, illustration of, 96. 
 notice as to illegality in part, 97. 
 ii. Mortgages- 
 difficulty from inclusion in statute, 97. 
 not negotiable instruments, 85 88, 97, 98, 99. 
 effect of statute on, 100, 101. 
 iii. Bonds 
 
 not included within operative part of statute, 101. 
 
 question as to, 101, 102, 103. 
 reason for exclusion, 103. 
 result as to bonds, 103, 104. 
 grantor of security for illegal consideration 
 provisions as to relief of, 91, 92. 
 operations of, illustrated, 104, 105. 
 particular instance, 106. 
 
 the statute 8 & 9 Viet. c. 109 
 
 does not repeal 5 & 6 Will. IV. c. 41... 139, 168, 169. 
 difference wagers not within 5 & 6 Will. IV. c. 41... 169. 
 securities for payment of such wagering debts are given 
 
 for void consideration, 169. 
 e.g., bill of exchange, 169. 
 
 mortgage by deposit, 169. 
 
 position of indorsee of bill given for no consideration, 169. 
 position of mortgagor of mortgage given for no considera- 
 tion, 169, 170. 
 
 bond tainted with illegality of original proceeding (Fisher v. 
 
 Bridges], 110, 111, 112. 
 pledge in furtherance of illegal purpose, depositor could not 
 
 recover where par delictum, 123. 
 
 SETTLING DAY. See Stock Exchange. 
 payment on, 208. 
 delivery, time for, runs from, 208. 
 default of member of Stock Exchange, 208. 
 carrying over continuations, 208, 209, 210. 
 
 SPECIAL CASE, form of, 343. 
 
 u B 2
 
 372 INDEX. 
 
 STAKE HOLDERS, 
 
 are severally agents of the several depositors, 189, 190. 
 several bailments not single trust, 190. 
 in illegal transactions 
 
 rescission by principal, 127. 
 
 notice by principal of rescission, 128. 
 
 effectual till actual payment over, 128, 129. 
 in void transactions 
 
 cannot sue for stake, 194. 
 
 rescission by principal, of authority of, 190. 
 
 after event before actual payment over, 191, 192, 193. 
 rights in such rescissions, 191, 192, 193, 194. 
 See Agent. 
 
 STAKES, 
 
 excessive, at common law, 35 et seq., 164. 
 in equity, 36, 37. 
 under statutes, 45 et seq., 55, 138, 241. 
 
 STATUTES, 
 Betting Houses, 
 
 16 & 17 Viet. c. 119 (betting houses), 260 et seq. 
 37 & 38 Viet. c. 15 (Scotland), 299 tt seq. 
 
 Billiards, 
 
 8 & 9 Viet. c. 109 (licence), 315 et seq. 
 
 Cock Fighting, 
 
 5 & 6 Will. IV. (penal), 60. 
 
 2 & 3 Viet. c. 47 (search), 61. 
 
 12 & 13 Viet. c. 92 (penal), 62, 253. 
 
 Games and Gaming, 
 
 33 Hen. VIII. c. 9 (unlawful games), 42, 43, 44. 
 
 16 Car. II. c. 7 (fraudulent and excessive gaming), 45, 46, 47, 
 51. 
 
 9 Anne, c. 14 (fraudulent and excessive gaming), 47 et seq. 
 2 Geo. II. c. 28 (executive powers), 44. 
 
 18 Geo. II. c. 34 (excessive and deceitful gaming), 55, 56. 
 8 & 9 Viet. c. 109 (repealing), 136139. 
 
 Gaming Houses, 
 
 33 Hen. VIII. c. 9 (gaming houses), 242, 243. 
 
 2 Geo. II. c. 28 (search), 243. 
 
 2 & 3 Viet. c. 47 (search, metropolitan), 246, 248. 
 
 8 & 9 Viet. c. 109 (gaming houses), 243 et seq. 
 
 17 & 18 Viet. c. 38 (gaming houses), 249 et seq. 
 
 Gaming Securities, 
 
 16 Car. II. c. 7 (effect on securities), 80 et seq. 
 
 9 Anne, c. 14 (effect on securities), 80 et seq. 
 
 5 & 6 Will. IV. c. 41 (effect on securities), 88, 90 et seq. 
 
 8 & 9 Viet. c. 109 (wagering and gaming contracts), 103, 104, 
 
 139 et seq. 
 
 36 & 37 Viet. c. 66 (procedure), 104. 
 45 & 46 Viet. c. 61 (bills and notes), 93 et seq.
 
 INDEX. 373 
 
 STATUTES continued. 
 Horse Racing 1 , 
 
 13 Geo. II. c. 19 (horse racing), 56, 57. 
 
 18 Geo. II. c. 34, s. 11 (weights), 57. 
 3 & 4 Viet. c. 5 (repealing), 58. 
 
 8 & 9 Viet. c. 109 (repealing), 58. 
 
 42 & 43 Viet. c. 18 (licensing), 58, 59. 
 
 Infants, 
 55 & 56 Viet. c. 4 (soliciting to bet), 302. 
 
 Insurance, 
 
 19 Geo. II. c. 37 (mercantile), 23. 
 
 14 Geo. III. c. 48 (interest), 26. 
 
 Licensed Premises, 
 35 & 36 Viet. c. 94 (public order), 305 et seq. 
 
 Lotteries, 
 
 10 & 11 Will. III. c. 17, s. 1 (lotteries declared nuisances), 63, 
 
 319. 
 s. 2 (prohibition of keeping lottery), 
 
 63, 319. 
 
 s. 3 (penalty on playing at such lot- 
 tery), 63, 319. 
 
 9 Anne, c. 6, s. 67 (advertising), 64, 319. 
 
 10 Anne, c. 26, s. 108 (setting up office), 64, 320. 
 
 s. 108 (advertising such office), 64, 320. 
 
 5 Geo. I. c. 10, s. 43 (offence arising out of existing public 
 
 lotteries), 64, 320. 
 
 8 Geo. I. c. 2, s. 36 (sale of houses, &c.), 65, 320. 
 
 s. 37 (contributing), 320. 
 
 9 Geo. I. c. 19, s. 4 (foreign lotteries, &c.), 65, 321. 
 
 6 Geo. II. c. 35, s. 29 (sale of tickets in foreign lottery), 321. 
 
 12 Geo. II. c. 28, s. 1 
 
 s. 2 
 
 8.3 
 
 s. 4 
 
 keeping a lottery), 66, 322. 
 ace of hearts), 66, 322. 
 adventurers), 66, 322. 
 sale of houses, &c.), 66. 
 
 s. 10 (royal palaces), 67. 
 
 s. 11 (legal partition), 67. 
 13 Geo. II. c. 19, s. 13 (passage, &c.), 67, 322. 
 18 Geo. II. c. 34, s. 1 (roulette), 67, 323. 
 
 s. 2 (players at roulette), 323. 
 
 22 Geo. III. c. 47, s. 2 (licensing), 67. 
 
 27 Geo. III. c. 1, s. 3 (sales of tickets), 67. 
 
 42 Geo. HI. c. 119, s. 2 (keeping place for lottery),68, 324. 
 
 s. 4 (authority of justices), 324. 
 
 s. 5 (agreement to pay), 68, 325. 
 
 6 & 7 Will. IV. c. 66 (advertising foreign and other lotteries), 
 68, 325. 
 
 4 Geo. IV. c. 60, s. 19 (public lotteries abolished), 68. 
 9 & 10 Viet. c. 48 (art unions), 69. 
 
 Stock Exchange, 
 
 7 Geo. II. c. 8 (Barnard's Act), 217. 
 
 23 & 24 Viet. c. 28 (repeal), 217.
 
 374 INDEX. 
 
 STATUTES continued, 
 
 Stock Exchange continued 
 
 30 & 31 Viet. c. 29 
 46 & 47 Viet. c. 52 
 53 & 54 Viet. c. 71 
 
 Leeman's Act), 217. 
 bankruptcy), 215. 
 bankruptcy), 215. 
 
 Street Betting, 
 
 30 & 31 Viet. c. 134 (metropolitan), 317. 
 36 & 37 Viet. c. 38 (street betting), 318. 
 
 Summary Jurisdiction, 
 
 11 & 12 Viet. c. 43 (procedure), 222 et seq. 
 
 12 & 13 Viet. c. 45 
 20 & 21 Viet. c. 43 
 22 & 23 Viet. c. 17 
 30 & 31 Viet. c. 35 
 42 & 43 Viet. c. 49 
 
 Baine's Act), 230. 
 special case), 233. 
 vexatious indictments), 236. 
 administration), 237. 
 procedure), 222 et seq. 
 
 47 & 48 Viet. c. 43 (procedure), 222 et seq. 
 
 STEWARDS, 
 
 jurisdiction of, 147, 148. 
 
 not arbitrators strictly, 149. 
 
 majority bind minority, 149. 
 
 decision before race, 150. 
 
 absolute judges of fact and law, 150. 
 
 conditions must be observed by, 151. 
 
 conditions precedent to jurisdiction, race must be run, 151, 
 
 152, 153. 
 
 may determine whether race has been run, 153. 
 self-interest no disqualification, 149. 
 
 STOCK EXCHANGE, 
 
 purchase or sale on 
 
 1. brokers or jobbers, 207. 
 
 2. settling day, 208. 
 
 payment on, 208. 
 time for delivery runs from, 208. 
 default of member, effect of, 208. 
 official broker, 208. 
 continuations, 208. 
 object of, 208. 
 illustration of, 209. 
 contango, 209. 
 backwardation, 210. 
 bears and bulls 
 
 definition of, 208. 
 
 operation of, 208 et seq. 
 
 closing delivery or difference, 210. 
 
 speculative sales or purchases not wagers, 210, 211. 
 
 See Wagering Contracts; Difference Transactions; and 
 
 Time Bargains. 
 
 gambling on Stock Exchange, user of phrase, 8. 
 speculative sales distinguished from wagers, 6, 7, 8, 9, 207 
 
 212. 
 See Difference Transactions ; Time Bargains,
 
 INDEX. 375 
 
 STOCK EXCHANGE continued. 
 options 
 
 nature of, 212. 
 puts and calls, 212. 
 
 continuation of put and call, 212. 
 grantor of, not entitled to shares, &c., 213. 
 may be, in substance, wagers, 213. 
 according to rules, must be real, 213. 
 prospective dividends, sale of 
 
 forbidden by rules of Stock Exchange, 213. 
 by holder of shares, valid contract, 214. 
 
 agent's right of indemnity, 214. 
 by person not entitled to shares, 214. 
 rigging the market criminal conspiracy, 214. 
 sanction on speculation, Bankruptcy Acts, 215, 216. 
 official assignee 
 
 winds up business of defaulter, 216. 
 collects differences artificial fund, 216. 
 holds title adverse to trustee in bankruptcy, 216. 
 Barnard's Act 
 
 penalized stock- jobbing in public shares, 217. 
 repeal of, 217. 
 bank shares 
 
 sale and purchase of, 217. 
 Leeman's Act, 217. 
 object of, 217. 
 effect of, 217, 218. 
 usage of Stock Exchange, 218, 219. 
 custom unreasonable, 219. 
 liability of brokers for negligence, 219, 220. 
 measure of damage, 220. 
 neglect of, destroys broker's indemnity, 220. 
 
 secus, if client has actual knowledge of custom, 
 
 220, 221. 
 
 non-compliance with, does not affect subsequent 
 transfers, 221. 
 
 STKEET BETTING, 317, 318. See Setting in Public Places. 
 
 SUBSCRIPTIONS, 
 
 within sect. 18 of 8 & 9 Yict. c. 109... 156 et seq. 
 recovery of plate, prize, or sum of money from, 155 164. 
 winnings from a wager, no recovery of, from, 155, 164, 193, 
 
 194. 
 no action against intended depositor, 194. 
 
 SUM ADDED. See Added Money, 
 
 SUMMARY JURISDICTION, 222 et seq. See Criminal Procedure. 
 
 SWEEPSTAKE, 70 et seq. See Lottery.
 
 376 INDEX. 
 
 "TAKING IN," 
 
 of stock, &c. ancillary to carrying over, 209. 
 transfer of property on, 209. 
 concurrent obligations, 209. 
 
 TATTERSALL'S, 
 
 rules of, how far recognized by Courts, 177, 181 et seq. 
 legality of such betting club, 291 294. 
 
 TECHNICAL EACING TERMS, 154. 
 added money, 154. 
 across country, 154. 
 gentleman rider, 154. 
 "P. P.," 154. 
 play or pay, 154. 
 regularly hunted, 154. 
 trotting match, 154. 
 plate, 156, 157, 158. 
 
 TELEGRAM, no resorting by, 291. 
 
 TENNIS, 
 
 game of skill, 136. 
 restrictions in, 43. 
 removal of, 136. 
 
 TIME BARGAINS, meaning of, strictly, 11. See Difference Trans- 
 actions. 
 
 TIPSTER. See Advertising. 
 
 TROTTING MATCH, meaning of, 154. 
 
 TRUSTS in illegal transactions unenforceable, 135. 
 
 TURF COMMISSION AGENTS. See Commission Agent; Agent; Agency. 
 
 TURPIS CAUSA, what is, 108. 
 
 UNLAWFUL GAMES. See Games. 
 on licensed premises, 305. 
 
 UNLAWFUL GAMING. See Gaming. 
 
 VEXATIOUS INDICTMENT. See Criminal Procedure. 
 
 VOID TRANSACTIONS, 
 
 no obligations inter paries, 165. 
 payments under, voluntary, 165. 
 payment by third person on express request, 166. 
 payment by personal representative, 166, 167, 168. 
 how far allowed, 167, 168.
 
 INDEX. 377 
 
 VOID TRANSACTIONS continued. 
 securities for payment, 
 
 i. under 5 & 6 Will. IV. c. 41... 90 et seq. 
 
 See Securities for Illegal Consideration; and Securi- 
 ties. 
 ii. void consideration of, 168. 
 
 illustrated by bill of exchange, 169. 
 
 mortgage by deposit, 169. 
 wager by way of payment, no discharge, 170. 
 rescission of, where no agent, 171. 
 deposits not voluntary payments, 171, 172. 
 
 recovery of, on rescission, 171, 172, 173, 175. 
 pleading, facts to be stated, 175. 
 agency in, 175 et seq. See Agents; Stakeholders. 
 
 WAGERING CONTRACTS, 
 
 characteristics of, 1, 26. 
 consideration, 1, 27, 28. 
 uncertain event, future or past, 2, 3. 
 distinguished from 
 i. warranties and liquidated damages, 4. 
 
 contracts of guarantee, 5. 
 ii. sales conditional as to price, 5. 
 iii. speculative sales, 6, 7, 8, 9. 
 illustrated by reference to 
 
 I. sports, &c., 9. 
 II. stocks and shares, 10. 
 
 difference transactions, 11. 
 time bargains, 11. 
 HI. insurance, life, 24. 
 substance not form in all cases, 20. 
 written documents may be fictitious, 14, 27. 
 
 form of action at common law, 27. 
 illegal at common law as tending to 
 breach of peace, 30. 
 immorality, 31. 
 interests of third parties, 31. 
 contrary to public policy, 32. 
 whether any still illegal, 142, 143, 145. 
 excessive amounts for, at common law, 34. 
 
 under statutes, 45 et seq. 
 
 void by section 18, 8 & 9 Viet. c. 109... 139. See Statutes (8 & 9 
 Viet. c. 109). 
 
 agents in. See Agency; Agents. 
 deposits, recovery of. See Deposits. 
 partnership in. See Partnership. 
 
 rescission of. See Rescission. 
 securities for. See Securities. 
 stakeholders in. See Stakeholders. 
 winnings. See Winnings on Wagers. 
 
 no payment by, 170. 
 
 WARRANTIES, distinguished from wagers, 4. 
 
 G. C C
 
 378 INDEX. 
 
 WARRANT. See Criminal Procedure. 
 for arrest of defendant, 225. 
 
 form of, 336. 
 
 for arrest of witness, form of, 338. 
 search of suspected premises, for, 245 247. See Gaming 
 
 Houses ; Betting Houses Act. 
 form of, 334. 
 
 WELSHING, 
 
 definition of, 303. 
 
 no property passes, 303. 
 
 is larceny at common law, 304. 
 
 WINNER, 
 
 who is, 145. 
 
 agreement, whole to be considered, 145. 
 
 save waived terms, 146, 147. 
 disputes, how settled, 148. 
 provision for, 148. 
 questions before the Courts, 148 et seq. 
 
 (1) jurisdiction, whether exercised, 148 et seq. 
 
 (2) jurisdiction, whether properly exercised, 148 
 
 et seq. 
 
 must be two or more competitors, 155. 
 loan by, to loser, 165. 
 
 WINNINGS ON WAGERS, 
 
 distinguished from plates, prizes, or sums of money, 155 164. 
 recoverable by winner at common law, 27 et seq., 35 et seq. 
 winner cannot recover, 139, 140, 141, 165, 193, 194. 
 except from agent. See Agent ; Agency. 
 
 partner. See Partnership. 
 payment of, by loser, voluntary and irrecoverable, 165. 
 
 WINNINGS IN ILLEGAL TRANSACTIONS, 
 
 repayment of, none, 107, 108, 121, 122, 123. 
 save (1) non in pari delicto, "120, 121. 
 
 statutory protection, 120, 121. 
 (2) oppressor and oppressed, 119. 
 fraudulently obtained, 119. 
 recovery of, none, 107, 108. 
 
 except from agent, when, 125, 126, 127. 
 rights of participes criminis inter se, none, 127. 
 principal and agent, 127. 
 partners, 129, 130, 131, 132, 133, 134, 135. 
 
 WITNESS, 
 
 warrant for apprehension of, 338. 
 in first instance, 338. 
 summons to, 335. 
 
 WITNESSES, 
 
 obtaining, for proof of offences under Gaming House Acts, 248, 
 
 251. 
 indemnity of, 248, 251. 
 
 WORK AND LABOUR done for illegal purpose, 115. 
 
 LONDON ! FEINTED BY C. F. BOWOBTH, GBEAT NEW BTEEET, FETTEB LANE, B.C.
 
 University of California 
 
 SOUTHERN REGIONAL LIBRARY FACILITY 
 
 405 Hllgard Avenue, Los Angeles, CA 90024-1388 
 
 Return this material to the library 
 
 from which it was borrowed. 
 
 LAW LIBRARY 
 UNIVERSITY OF CALIFORNIA
 
 Illlfi