A question has more than once been suggested to the writer as to the legality of a practice now very common among the sporting papers of attaching coupons on which are to be written, say, the winners of any three coming events, a prize being awarded to the successful person or persons. Is this a bet? If it is, then probably the proprietors of the newspapers would lay themselves open to be prosecuted for keeping an office for the purpose of betting with persons resorting thereto. But it is submitted that such a transaction is not in the nature of a bet at all. Even supposing the purchaser of a newspaper get it at the office, the 1d. or 2d. he pays is to buy the paper. Of course the case might be different if a separate deposit was required when the coupon is sent in. But the difficulty is all the greater when, as is generally the case, the paper has been purchased at an ordinary shop. There is then no privity between the purchaser and the newspaper proprietors. We have above (p. 32 et seq.) suggested some of the characteristics of a wager: the coupon system does not seem to contain any of them.
The above observations have, since they were written, been confirmed by the decision of the Divisional Court in Caminada v. Hulton[392]. The scheme in this case was of the ordinary character. The defendant published “The Sporting Chronicle Handicap Book” as a weekly companion to a daily paper, “The Sporting Chronicle.” Attached to the book, which was a sort of racing guide, was a coupon, with the titles of six races printed on it. The book was sold for 1d., and the purchaser of the book was invited to fill up the coupon with the names of the horses he might select as the winners of the six races; and prizes of various gradations were offered to the competitors, according to the number of winners each might select. It was held that the 1d. being paid for the purchase of the book, the scheme was not a wager, but only a device for increasing the sale: nor was it a deposit of money on an agreement specified in section 3 of the Betting House Act.
This case leaves the point suggested above untouched, viz., whether if a separate payment were made in respect of each coupon sent in, it would not amount to a wager.
Competitions have in modern times assumed very various forms; but the racing coupon is the only one which has evoked a decision. Each must be judged according to its own scheme. Apart from fraud, the objections which could be taken to them would be as infringements of the Betting House Act in the Lottery Acts. In the earlier parts of this work some tests and criteria of a “wager” and a “lottery” are suggested. (See the Index under these headings.)
(2.) Receiving money on deposit. A house, &c., kept for this purpose is also illegal. No doubt all the cases cited above as to evidence of a house being kept for the purpose of the offence first mentioned in this section and of permitting it to be so used are applicable to this case. The following case shows that a man brings himself within the statute by doing business in this way by correspondence, even though he profess to be a mere agent for doing commissions. It has already been suggested that betting by correspondence is not within the first clause of the section.
In Wright v. Clarke[393] Wright was charged under section 3 of 16 & 17 Vict., c. 119, with keeping a house and office near Covent Garden for the purpose of receiving money on an undertaking to pay money on events and contingencies relative to horse races. Advertisements were inserted in the different papers to the effect that he would execute commissions on all races at the best prices, instructions to be sent to his offices in York Street; that he did not lay bets himself, but only acted as agent in the matter. “The money sent for investment will be taken into the best market, and laid out the best advantage for clients. All communications must be sent through post, and the replies can only be forwarded in the same manner. Commissions executed to any amount on receipt of the cash. All bets paid the day after the race (less 5 per cent. on winnings), provided the vouchers are sent at the same time.” Two or three police officers acting on instructions, gave instructions to Wright by post to back certain horses for some of the Ascot races, enclosing P.O.O.’s, and they received letters of acknowledgment from Wright, saying that their instructions had been carried out. In one case an officer received a cheque from Wright for winnings minus 5 per cent., Wright’s commission. A warrant being issued under section 11 of the Act, Wright and some clerks engaged in filling up papers and forms relating to his betting business were arrested. A large number of documents and books relating to betting were found upon the premises, and also 56,000 vouchers. There was in one of Wright’s books an entry of his transaction with one of the officers. Being convicted and fined £100, a special case was stated for the Court of Queen’s Bench.
For Wright it was contended: (1.) That he was not within the Act, seeing that persons did not resort to his office, the whole was conducted by correspondence; besides, he was simply an agent and not a principal. (2.) That the vouchers did not amount to an agreement to pay money on a bet, but only contained advice as to the mode of applying for payment. (3.) If they did amount to such an agreement the money deposited with him by P.O.O. was not the consideration for such agreement. The real consideration was the 5 per cent. of the winnings retained. (4.) That Wright could not be said to have used the house for the purpose of receiving the P.O.O.’s.
The Court held that Wright came within the second part of section 1. The office was kept open and there was a promise, express or implied, to pay the money in the event of a horse race, though nobody entered the house. There could be no doubt Wright was the principal and intended to be responsible for the payment of the bet. An implied promise would suffice to bring the case within the statute.
This case seems to make it clear that the receipt of money by way of deposit on bets even through the post is an unlawful purpose within the second clause of sections 1 and 3, which do not speak of receiving money from “persons resorting thereto.” It has already been suggested that these words in the first clause seem to exclude making bets on credit through the post. In the judgment of Hawkins, J., in Reg. v. Preedie (see note, p. 174), his lordship says: “That the Act is directed against carrying on the business of betting with, or receiving deposits from, persons resorting thereto.” It is with the greatest deference suggested, and for the reasons given above, that this is not quite accurate.
It has been suggested above that “bucket shops” would be illegal under clause 1 of sections 1 and 3, if difference bargains which have been held to be wager contracts, are the course of business carried on therein. But as far as the second clause goes relating to ready money betting, it is clear that the bucket shops are not included, seeing that these clauses are confined to ready money betting on horse races, &c., consequently they would not be liable under these clauses for taking securities from their clients to secure the differences they may have to pay, commonly known as “cover.”
It has been held that in order to constitute a receipt within sections 1 and 3, the actual receipt of the money in respect of the bets must be in the house alleged to be used for the unlawful purpose. In Davis v. Stephenson[394] the bookmaker used an alley, not part of the licensed premises, of which the defendant was landlord, as a resort for persons to bet with him, where he received sums of money on deposit.
This money was afterwards taken into the defendant’s house, and the house was it appeared used for the purpose of settling. It was contended in support of the conviction that this amounted to a continuous receipt by the bookmaker, and that the defendant permitted the use of the tavern as a betting office. |Banker not liable.| The Court held that the actual receipt must be within the place alleged to be so used. It is clear from this case that a banker could without liability open an account for the receipt of deposits paid in by a bookmakers’ customers in respect of bets which they contemplated making with the bookmaker elsewhere, seeing that the bank would not be used for an illegal betting purpose by any of the persons specified. The effect of this decision on the latitude allowed to bookmakers has been pointed out above, p. 185.
Section 4 of the Act seems to aim at creating an offence different from either of those specified in sections 1 and 3, but the exact difference is not quite clear at first sight (the section is set out at p. 166). The offence is any one actual receipt or acknowledgment given in respect of a bet on a horse race, &c., by a person who keeps or manages a house or place used for either of the purposes specified in sections 1 and 3. And it does not seem to be necessary that the receipt should be in the house or place as it is under the two earlier sections. But, of course, to constitute such receipt an offence it must first be proved that there is a house or place used, &c.; section 5 giving a right to recover money deposited as in the last section mentioned has been fully dealt with at p. 65.
Section 6 provides that the Act shall not apply to any person receiving stakes to be awarded to the winner of a race, &c., so that the stakeholder of a race meeting is not under any liability. The provision was no doubt considered necessary seeing, as has been pointed out at p. 36, that a race for stakes is really a wagering and gaming agreement among the competitors.
Although, as we have seen, a person doing business as a commission agent, and executing such commissions on credit is not within the Act, yet it seems that if he take money in advance he will be liable. Section 1 provides that taking money as the consideration for securing the payment by another person on any future contingency is an illegal purpose. The text of the statute is given ante, p. 165.
We have ante p. 162 ventured the opinion that in a partnership formed to carry on an illegal gaming house no action could be maintained by one partner against the rest for an account of profits. The same, of course, applies to illegal betting houses, but subject to this, that in a betting partnership it will be very material to see whether the firm are really doing an illegal business at all; if the business be simply that of betting at a lawful club, or if they do an ordinary commission agency business, there is nothing illegal in this, as we have just explained under the title of “illegal betting.”
Income Tax must be paid on profits even if the business be illegal. Partridge v. Mallandaine, 18 Q. B. D., 276.
Considering how the law stands with regard to the liability of owners or occupiers of enclosures, for allowing them to be used for the purpose of betting with the public resorting thereto, it may be as well to notice that by law they have somewhat arbitrary powers in the matter of allowing persons to remain therein, even after they have paid their money. Thus in Wood v. Leadbitter,[395] Lord Eglinton was steward of the Doncaster races. Plaintiff was in the grand stand, having obtained admission by ticket issued by the authority of Lord Eglinton. Defendant by his lordship’s direction ordered plaintiff to leave the grand stand. It was assumed for the purposes of the case that plaintiff had in no way misconducted himself. It was held that the right to come and remain on the land of another could only be granted by deed; otherwise it was a mere license revocable at any time without returning the money paid for the ticket.
The next kind of offence created by the statute consists in advertising any house or place as being used for betting purposes or for the exhibition of betting lists.
Section 7 enacts that “any person exhibiting, publishing, or causing to be exhibited or published, any placard, handbill, card, writing, sign or advertisement, that any house, office, room or place is kept or used for the purpose of making bets or wagers in manner aforesaid, or for the purpose of exhibiting lists for betting, or for the purpose of inducing any person to resort to such house, &c., for the purpose of making bets, or any person who on behalf of the owner or occupier of such house, &c., who shall invite other persons to resort thereto for the purpose of betting, shall be liable to a penalty of £50 or two months’ imprisonment.”
What persons are forbidden by this section to advertise is: (1) That a house or place is kept for the kind of betting mentioned in a former part of the Act, i.e., Section 1. So that to understand what kind of betting it is that must not be advertised, reference must be made to the cases that have been decided thereon. |Betting lists.| (2) People must not advertise their houses as exhibiting betting lists—that is, people may keep lists of races, current odds, &c., but not advertise the fact. This should be borne in mind by hotel and club proprietors, and all persons whose premises are furnished by means of the “tape” with the latest information as to races. Betting lists may be seized by officers entering premises by virtue of section 11 of 16 & 17 Vict., which speaks of lists and “all documents relating to betting,” and also they are expressly mentioned in section 12 of the same Act, which treats of the powers of the Metropolitan Police.
By section 20, Scotland is expressly excluded from the provisions of the Act, consequently not only was that country inundated with members of the betting fraternity who could not carry on their business in this country, but seeing that betting houses in Scotland were not illegal, Section 7 did not make advertisements of such places illegal. Consequently, many of the daily papers made large sums by inserting such advertisements, which, no doubt, acted as a powerful incentive to certain members of the community to invest their money across the border. As Mr. Anderson observed, in bringing his Bill before the House of Commons,[396] that England had acted towards Scotland like the humane gardener towards his neighbour by sending over to him all his vermin. The Act which is known as Anderson’s Act, 37 Vict., c. 15, is described as “an Act to be construed as one with the principal Act of 1853 and to be cited together as the Betting Acts.”
Section 20 of the principal Act is repealed, thus extending that Act to Scotland.
By section 3, when any letter, telegram, circular, placard, handbill, card or advertisement is sent, exhibited or published,
(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 bet or wager on any such event or contingency as is mentioned in the principal Act; 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 any 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 section 7 of the principal Act with respect to offences under that section.
What the latter statute prohibits people doing is, not advertising themselves as ready to give information or “tips” with respect to ordinary betting transactions, but only with respect to betting carried on in any office or place used for the purpose of illegal betting within the principal Act.
Thus in Cox v. Andrews[397] defendant issued advertisements in the Licensed Victuallers’ Gazette and Hotel Courier that Centaur would, for half-a-crown in stamps, give information and advice with respect to the probable winners of races in the ensuing week. Centaur was the defendant’s regular correspondent with respect to horse-races and information relating thereto. There was no address given at which persons desiring such information should apply. Held, that the advertisement, contemplated in 37 Vict., c. 15, referred to bets made in any office, house or place as referred to in the principal Act, and not to advice with respect to ordinary betting; the Act was to be read with the principal Act, and the only kind of betting prohibited by the latter was that specified in section 1. Of course, this being the purport of the statute, all the cases cited above as to what is a “place,” etc., and particularly as to the kind of betting prohibited by the Statute 16 & 17 Vict., c. 119, apply to the construction of the supplementary as well as of the principal Act. |Betting clubs.| It is clear, therefore, that the ordinary betting clubs so long as they themselves are not within the Act, may advertise for members. |Agents.| So also the ordinary commission agent, who does business at these clubs, may advertise for clients.
Now that the bookmaker, having first been driven out of England has also been banished from Scotland, he seems from the advertisements in the papers to have betaken himself to Boulogne. Considering that any house he may set up there is not within the Act, it follows that these advertisements are perfectly legal.
We have now to notice an Act which has recently been passed to prohibit the sending of advertisements or invitations to bet to persons under age. The Betting and Loans (Infants) Act, 55 Vict., c. 4, s. 1, provides: (1) “If any one for the purpose of earning commission, reward, or other profit, sends or causes to be sent to a person whom he knows to be an infant, any circular, notice, advertisement, letters, telegram or other document which invites, or may reasonably be implied to invite, the person receiving it to make any bet or wager, or to enter into or take any share or interest in any betting or wagering transaction, or to apply to any person or at any place with a view to obtaining information or advice for the purpose of any bet or wager, or for information as to any race, fight, game, sport, or other contingency upon which betting or wagering is usually carried on, he shall be guilty of a misdemeanour....” The penalties imposed are, if convicted on indictment, three months’ imprisonment, with or without hard labour, and a fine of £100; on summary conviction, one month and £20 fine.
Sub-section 2. “If any such circular, notice, advertisement, letter, telegram or other document, as in this section mentioned, names or refers to any one as a person to whom any payment may be made, or from whom information may be obtained for the purpose of or in relation to betting or wagering, the person so named or referred to shall be deemed to have sent, or caused to be sent, such document as aforesaid, unless he proves that he had not consented to be so named, and that he was not in any way party to, and was wholly ignorant of, the sending of such document.”
By section 3: If any such circular, &c., is sent “to any person at any university, college, school, or other place of education, and such person is an infant, the person sending it, or causing it to be sent, shall be deemed to have known that such person was an infant, unless he proves that he had reasonable grounds for believing such person to be of full age.”
By section 6: “In any proceeding against any person under this Act, such person and his wife, or husband, as the case may be, may, if such person thinks fit, be called, sworn, examined, and cross-examined as an ordinary witness in the case.” Scotland is not excluded from the Act.
The oft-disputed question of whether “welshing” is a penal offence has been set at rest by Reg. v. Buckmaster.[398] It was there held that it amounted to larceny by trick, on the ground that there being no intention on the prisoner’s part when he took the prosecutor’s money of paying the prosecutor if he won his bet, there was no real contract between the two which could pass the property in the money paid by the prosecutor to the prisoner.
We now come to treat of the procedure whereby the laws against gaming and betting houses can be enforced. It will be observed that it differs in some important respects from the ordinary procedure in criminal cases, in being more drastic and to a great extent less considerate to the liberty of the subject owing to the great difficulty of detecting the offences and the facility with which the law might be evaded if ordinary forms had to be observed.
The procedure is slightly different in the case of gaming and betting houses, so they must be treated separately.
I. As to gaming houses, by 25 George II., c. 36, ss. 5 and 6, it was provided that if any two inhabitants of a parish should give notice to a constable of any person keeping a gaming house, the constable should take such persons before a justice of the peace; that the justice should, on the sworn information of such persons, bind them over to prosecute at the Assizes or Sessions, and issue a warrant for the arrest of the person accused and bind him over to answer any indictment that might be found against him. It seems that the section leaves the magistrate no discretion as to granting a warrant[399]; but as it only applies to proceedings preliminary to indictments it is, in practice, superseded by the procedure prescribed in the more modern Statutes. This procedure is different according as the house is situated in the Metropolis or out of that district. |In the Metropolis.| In the Metropolis, by 2 & 3 Vict. c. 47, section 48, power was given to the Commissioners of the Police Force, on the report of any superintendent, that there were good grounds for believing that any house within the district was used as a common gaming house, and on two witnesses making oath before a magistrate, to empower the superintendent and other constables to enter the house, arrest all persons found therein,[400] and destroy all tables, instruments of gaming, money, and securities for money. By 8 & 9 Vict., c. 109, section 6, the Commissioners are invested with the same powers, except that the necessity of two witnesses making oath before a magistrate is dispensed with; and the power to seize (and not destroy) instruments of gaming is given.
This latter section does not empower Metropolitan magistrates to issue such warrant as the Betting House Act does.
By section 24 of the latter Act, Metropolis in Ireland means Dublin.
By section 7, special power is conferred on such superintendent or constables to search the whole house where he shall suspect there are instruments of gaming concealed, and any person found therein,[400] and to seize all tables and instruments of gaming which he shall so find.
By section 8, magistrates before whom persons are brought, having been arrested in a gaming house, may order all such tables and instruments of gaming to be destroyed.
In the case of houses out of the Metropolis, justices of the peace may, on information on oath that there is reason to suspect any house is used as a gaming house, issue a warrant in the form given in the schedule to the Act to empower officers to enter such house by force, and arrest all persons found therein. This section does not empower constables to seize or destroy instruments of gaming. |Form of warrant.| An important point to notice about the form of the warrant is that it is directed only against a particular house, the individuals who may be arrested need not be named or described. This is an important departure from ordinary procedure, as generally a warrant for an arrest is bad if the name of the person to be arrested or some description of him do not appear on the face of the warrant, as was decided in the “general warrant” cases in George III.’s reign.
By section 5 it is provided that it shall not be necessary in support of any information, for keeping a gaming house, to prove that persons found playing therein were playing for money or stakes.[401]
The power of ordering the destruction of instruments of gaming conferred by section 8 seems to apply out of the Metropolis. The words are “warrant or order.”
It does not appear that police magistrates in the Metropolis have the power of issuing warrants in the form above described, as the section expressly excludes the metropolitan district.
N.B.—In any questions arising under this Act, reference should be made to the cases which are noted under the corresponding portions of the Betting House Act, as the wording of the two statutes is in many cases similar.
There are also important provisions in 17 & 18 Vict., c. 38, with respect to the power of a magistrate to compel witnesses to give evidence, under section 5 and section 6. All persons apprehended under the powers contained in section 3 and section 6 of 8 & 9 Vict., c. 109, may be required to give evidence touching any unlawful gambling or obstruction of officers in the house, notwithstanding that such evidence may tend to criminate the witness. Such person refusing to be sworn may be dealt with as any ordinary witness so refusing. But every such person who has made full discovery of all the facts he knows is entitled to a certificate from the justices which frees him from criminal proceedings in respect of matters on which he has been examined.
By section 7 penalties and costs may be levied by distress, and by section 8 half the penalty is to be paid in aid of the poor-rate of the parish in which the offence is committed, and half to the person laying the information.
In Wray v. Ellis[402] a question arose as to whether this section applied to penalties paid in the Metropolis. By the Statute 2 & 3 Vict., c. 71, section 47, it is provided that all fines paid in London Police Courts shall be paid to the Receiver of Police. The question was whether the enactment was superseded by section 8 of 17 & 18 Vict., c. 38. The Court held that it was not; and that in the latter section an implied exception was contained in the case of penalties paid in the Metropolis, and that therefore the Receiver was entitled.
By section 9, if the person who shall have laid the information neglects to prosecute, the justices may authorise some other person to proceed.
Any person convicted summarily under this Act may appeal to the Quarter Sessions on entering into recognisances and finding sureties within 48 hours of his conviction.
By section 11 no information under the Act is to be removed by certiorari into the Queen’s Bench.
In the case of actions brought against officers for any trespass or other wrongful proceeding done or committed in the execution of the Act, it is provided (section 13) that no action shall be brought if sufficient tender of amends shall have been made before action brought, and by section 14 no action or other proceeding shall be brought, unless one month’s notice in writing shall have been given to the intended defendant, nor unless the action shall have been commenced within three months of the act or omission complained of.
In Blake v. Beach[403] it was contended for the defendant that by section 14 a month’s notice of the information ought to have been given to him, but this point was abandoned by Counsel as untenable, when the case came before the Divisional Court; and was also said by the Court to have been “founded on an obvious mistake!”
Keeping a gambling house is one of the offences mentioned in the Vexatious Indictments Act, 22 & 23 Vict., c. 17, which by section 1 provides that no bill of indictment for any of the offences named shall be presented to the Grand Jury unless the prosecutor or person preferring such indictment has been bound by recognisance to prosecute or give evidence; though, by section 2, if the justices decline to commit for trial, prosecutors may require them to bind him over to prosecute.
The procedure in the case of betting houses is to a certain extent similar to that in the case of gaming houses, except that the power of magistrates to issue a warrant in the form already described is not limited to places out of the metropolitan district.
By section 11 of 16 & 17 Vict., c. 119, justices of the peace are empowered, on information on oath that any house suspected of being used as a betting house, |Search warrant.| to issue a warrant authorising the forcible entry into any such house, and the arrest and searching of all persons found therein, and also the seizure of all lists and cards and other documents relating to racing or betting found in such house. Such warrant may be in the form given in the schedule to 8 & 9 Vict., c. 109.
In Anderson v. Hume[404] it was decided (1) that this section empowers the search of licensed houses as well as others, although they are subject in some respects to special regulations; (2) that the power to arrest persons found therein is not confined to persons found engaged in gaming.
In Blake v. Beach[405] a warrant was issued under section 11 of this Act for the search of a house suspected, as was stated in the warrant, of being used as a common gaming house within 8 & 9 Vict., c. 109. Under this warrant defendant and other persons found therein were arrested. Defendant was afterwards charged under section 3 of 16 & 17 Vict., c. 119, with keeping a betting house. Ample evidence was given that defendant was manager of the place, and that it was used for betting purposes, but this charge was made without any fresh information being laid against defendant. |Whether fresh information necessary.| It was objected on his behalf that as the information on which the warrant was granted was laid under 8 & 9 Vict., c. 109, a fresh information ought to have been issued before he could be charged under the Statute of 16 & 17 Vict., c. 119.
The Court differed, Field, J., holding that no fresh information was necessary. In this case a specific charge was made against the accused sufficient to give the magistrates jurisdiction. The information provided for by section 11 took away the necessity of any further information. Further, according to the current of modern authority, when a man is before a magistrate who has jurisdiction as to time and place, no further information is necessary before bringing any fresh charge against him, though it might be proper to adjourn the hearing.
The rest of the Court, Cleasby and Grove, JJ., differed. In the ordinary course a charge is preceded by information or summons. In this case the defendant was brought up on a charge different from that contained in the information. In a penal matter the charge ought to be comprised within the information. There is nothing in section 11 to dispense with the regular information or summons; it only enables persons to be brought before the magistrates so as to know who is to be charged. The conviction was therefore quashed.[406]
The information may be laid before one justice only.[407]
Where an information under the Betting House Act charged defendant with having kept a house for betting purposes on the 5th October “and divers other days.” The evidence proved the offence alleged on the 8th of November only. Held, that under section 9 of 11 & 12 Vict., c. 113, the variance was immaterial.[408]
For an instance in which a warrant was, under this section, issued in the Metropolis, see Clarke v. Wright (quoted above).
Section 12 confers the same powers on the Commissioners of Police in the Metropolis, on the report in writing of any superintendent, to authorise such superintendent, with other constables, to enter suspected betting houses, as is contained in the Gaming House Act; to take into custody all persons found therein,[409] and to seize all lists, cards, or other documents relating to racing or betting.
The Act also contains provisions similar to those of the Gaming House Act, with respect to appeals to Quarter Sessions, certiorari, and limitations of action (see above, p. 199).
By 35 and 36 Vict., c 94, if any licensed person (1) suffers any gaming or any unlawful game to be carried on on his premises, (2) opens, uses, or suffers his house to be opened or used in contravention of 16 & 17 Vict., c. 119, he is liable for the first offence to a penalty of £10, and for every subsequent offence to a penalty of £20; the conviction to be endorsed on such person’s license.
The following cases go to show how far actual or constructive knowledge on the part of the owner of the premises is necessary.
In Redgate v. Haynes,[410] defendant was the landlady of an hotel at Epsom; witnesses proved that three men and a horse-trainer, a jockey, and an inhabitant of Newmarket, were playing cards for money in the sitting room from 11 p.m. The defendant retired to bed, leaving the hall porter in charge of the house. The latter closed the door and retired to his chair in the parlour, at the farthest end of the house. The usual place for such chair was in the hall, and it was his duty to wait upon his guests in the sitting room. From the Judgment delivered the following rules may be extracted: (1) The defendant would not be liable merely for the fact of gaming unless she knew of it or connived at it. (2) In her absence she was responsible for the conduct of those she left in charge. (3) The fact of the porter moving his chair out of the way was some evidence that he suffered or connived at what was going on, but the judges declined to say whether they would have drawn the same conclusion.
In Bosley v. Davies[411] there was evidence that persons were playing at cards in the house, but none that the manageress or the attendants knew that gaming was on. One of the players deposed that all the brandies and sodas were served before the playing commenced. The case was sent back to the magistrates with an intimation of opinion from the Court that some knowledge, actual or constructive, or connivance on the part of the owner was necessary.
In Somerset v. Hart,[412] defendant was keeper of licensed premises. On market day when the inn was very full, two men began gambling with a mug and three nuts. It was proved that the potman knew of gambling, but took no steps to prevent it, nor did he communicate it to the landlord, who was engaged serving customers at the bar. Coleridge, C.J., in giving judgment, distinguished the case of Redgate v. Haynes,[413] on the ground that there the magistrates thought there was evidence of connivance. Mullins v. Collins was a case of serving a constable with liquor while on duty; but there the liquor was served by a woman who was probably defendant’s wife, to whom the management of the business had been entrusted. Here the magistrates find that there was no evidence that defendant had actual knowledge of the gaming, or that the potman communicated it to him, or that he wilfully shut his eyes to what was going on. All the cases show that there must be something in the nature of connivance. See, too, ante p. 175.
The case of Bond v. Evans,[414] carried the matter somewhat further. The defendant, a licensed victualler, had a skittle alley attached to his premises, the management of which he entrusted to a servant. It was proved that cards were played for money in the alley, and that the servant was cognisant of the fact, though the defendant was not. It was held that, the landlord of licensed premises “suffered” gaming to be carried on when there was connivance at it, either on his own part or on the part of any servant in charge of that part of the house where gaming went on.
To be within the act there must be either gaming for money or playing some unlawful game. Thus in Reg. v. Ashton[415] (a case within 9 Geo. IV., c. 61, section 21) it was held that playing at dominoes, but not for money, was lawful, dominoes not being an unlawful game.
In Danford v. Taylor,[416] the game of ten-pins, the losers standing beer all round, was held to be within the Act.
In Bew v. Harston,[417] a licensed person allowed to be played on his premises a game called “puff and dart,” the object of which is to hit a mark on a target with a small dart blown through a tube. The players each contributed 2d. as entrance money, the total sum so contributed being applied to the purchase of a rabbit as a prize for the winners. Held that he was rightly convicted of gaming on licensed premises. Cockburn, C.J., doubted whether the term “gaming” did not apply to games of chance alone.
Except for the doubts thus expressed in the last case, the authorities seemed to be all one way, that playing for money, even at a game exclusively of skill, is “gaming”: this view has since been adopted in Dyson v. Mason.[418]