1. Gaming in general. So is a wager on a foot-race, whether the race be upon a given distance or against a certain time. (Lynall v. Longbotham, 2 Wils. 36). So is a wager that a person did not find, within such a time, a man who should carry on foot 24-stone weight, ten miles in fifteen hours. (Brown v. Beckley, 1 Cowp. 282). So is a wager above 107. on a game of cricket, though the game is not finished in a day. (Hodson v. Terrill, 1 C. & M. 797; and see Jeffreys v. Walter, 1 Wils. 220). So is a wager on a game at chess or bowls, (Sijeb v. Jebb, 3 Stark.1), or at skittles. (Foot v. Baker, C. P., 25 Jan. 1843, 7 Jurist, 131). But to make the wager or game illegal it must appear that the party on whose side the bet was made, was playing at a game within the act. Therefore, although a foot-race is a game within the act, yet a bet thereon, though above 107. is not invalid, unless it appears that the pedestrian was playing at such game; as it might be that he had run for diversion or exercise, and it is not to be presumed that he was running for a wager, or was concerned in the bet. (Lynall v. Longbotham, 2 Wils. 36, cited per Gaselee, J., in Brogden v. Marriott, supra). So a wager of more than 107. on a horse-race already run is not illegal. (Pugh v. Jenkins, 1 Ad. & E., N. S., 631; 1 Gale & Ď. 40. S. C.). With respect to what is a losing at one time and what a losing at one sitting in the case of Bines v. Booth, (2 Blac. Rep. 1226), two persons played at cards from Monday evening to Tuesday evening without any interruption, except for an hour or two at dinner, and one of them won a balance of 17 guineas; this was held to be won at one sitting within the statute. Et per Blackstone, J.-" To lose 107. at one time is to lose it by a single stake or bet; to lose at one sitting is to lose it in a course of play where the company never parts, though the person may not be actually gaming the whole time." Nares, J.-"The statute is remedial where the action is brought by the party injured, but penal where brought by a common informer." And see Hodson v. Terrill, (1 C. & M. 797), as to a game at cricket not finished in a day. As to what is a gaming on ticket or credit within these acts; the plac ing of money in the hands of a stakeholder to abide the event of a game, and then handed over to the winner, is not so. (Applegarth v. Colley, ante, 315). If a race is to be run or other game played, the mere fact of a party depositing with a stakeholder, by way of gift, 107. or more to be given to the winner, does not make it a game for 107. or more within the acts. (See Applegarth v. Colley, supra). The 2nd sect. of the 9 Ann., enabling the loser to recover back money to the amount of 10%. or more, lost at play, or a common informer to sue for it and treble its amount if the loser does not sue, does not apply merely to gaming for ready money. (Smith v. Bond, 12 Law J., N. §., 296, Exch. E. T. 1843). The offence, under that enactment, is committed at the place of play, and not necessarily at the place of payment of the money lost. (Id.) It seems that the construction put by the old authorities of Bargeau v. Walmsley, 2 Stra. 1249; Alcinbrook v. Hall, 2 Wils. 309; Robinson v. Bland, 1 H. Bla. 260, 2 Burr. 1077, S. C.; M'Allester v. Haden, 2 Camp. 438, on the statute of Anne, that it only avoided the security given for a gaming debt, and not the contract to pay the debt itself, is erroneous; at all events such construction cannot be held good since the 5 & 6 Will. IV. c. 41, ante, 313. (Applegarth v. Colley, supra). and The judgments made void by the above statutes (16 Car. II. c. 7, and 9 Ann. c. 14) are judgments given by the loser to the winner, or to some one for his benefit, as a security for money lost, and do not include judgments obtained by a bonâ fide indorsee of a negotiable instrument given originally for a gambling debt. Therefore, where N. accepted a bill for a debt lost at play, and the drawer indorsed it for value to the plaintiff, who sued N. and obtained from him a cognovit, and entered up judg ment thereupon:—it was held, that the judgment was valid, and that in an action against the marshal for an escape, the latter could not rely on the above statutes as a defence to the action. (Lane v. Chapman, 3 Per. & D. 668; 11 A. & E. 966, S. C.). It seems that if the judgment had been null and void, it would have been a good defence to the marshal, although N., the acceptor of the bill, had not availed himself of the statutory defence, when sued upon it. (Id.) It was made a question, but not decided, in the above case of Applegarth v. Colley, whether the penalties given by the 5th sect. of the statute of Anne, can be enforced against the winner unless there be also a loser to the amount of 107. or upwards. Upon an indictment on the 5th sect. of the statute of Anne for winning more than 107. at one sitting, the defendant may be convicted of winning a less sum than that stated in the indictment. (R. v. Hill, 1 Stark. 359. See post, 319). The loser is a good witness to prove the loss. (R. v. Luckup, M., 9 Geo. II., B. R., cited Will. 425, n. (c)). In R. v. Luckup, (2 Str. 1048), the defendant was convicted on an information upon the 5th sect.; and it was moved, that a fine should be set upon the defendant if he refused to speak with the prosecutor. But by the court-"All the judgment that we can give is, that he is convicted; and a new action must be brought upon that judgment for the forfeiture." And the defendant was discharged without any fine or costs. It seems that if a loser prefer an indictment against a winner, and the grand jury find the bill, the court will not permit an information to be filed against the defendant, although the indictment was quashed, and of course the defendant never tried upon it, for the grand jury may find another bill for the same offence. (1 Hawk. c. 32, s. 56; Anon. 8 Mod. 187). As to horse-racing, see post, "Horse-races." The 12 Geo. II. c. 28, s. 2, and 13 Geo. II. c. 19, s. 9, contain provisions declaring certain games, viz. the games of the ace of hearts, pharaoh, basset, and hazard, and the game of passage, and other games therein to be illegal, and impose penalties for gaming, &c. at them; but as the principal provisions of these enactments are directed against lotteries, they will be found fully noticed under the 3rd sect. of this title relating to lotteries, post, 325, 328. 1. Gaming in general. Horse-races. 12 Geo. 2, c. 28, and 13 Geo. 2, c. 19. Clared of themCertain games deselves illegal. By the 18 Geo. II. c. 34, intituled "An act to explain, amend, and 18 Geo. 2, c. 34. make more effectual the laws in being, to prevent excessive and deceitful gaming, and to restrain and prevent the excessive increase of horse races," sect. 1, after reciting that "notwithstanding the many good and wholesome laws now in being, for preventing excessive and deceitful gaming, many persons of ill fame and reputation who have no visible means of subsistence, do keep houses, rooms and other places for playing, and do permit persons therein to play at cards, dice, and other devices for large sums of money, by means whereof divers young and unwary persons and others are drawn in to lose the greatest part and sometimes all their substance; and it frequently happens they are thereby reduced to the utmost necessities and betake themselves to the most wicked courses, which end in their utter ruin: and whereas a certain pernicious game called roulet or roly-poly is daily practised, and the laws now in being have by experience been found ineffectual to put a stop to such pernicious practices:" for remedy whereof it is enacted, "that no person or persons of what condition soever shall keep any house, room or place for playing, or permit or suffer any person or persons whatsoever within any such house, room or place to play at the said game of roulet, otherwise rolypoly, or at any other game with cards or dice already prohibited by the laws of this realm; and in case any person or persons whatsoever shall keep any such house, room or place for playing, or 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 prohi bited by law, such person or persons so offending shall incur the pains No person shall 12 Geo. 2, c. 28. and penalties and be liable to such prosecution as is directed in and by an act made in the twelfth year of the reign of his present Majesty, intituled “An act for the more effectual preventing excessive and decitful gasing." Sect. 2. "If any person or persons whatsoever shall, after the said 24th day of June, 1745, play at the said game of roulet, otherwise rolypoly, or at any game or games with cards or dice, already prohibited by law, every such person or persons so offending shall also incur the paits and penalties, and be liable to such prosecution as is directed in and by an act made in the twelfth year of the reign of his present Majesty, intituled, 'An act for the more effectual preventiny excessive and deceitful gaming.' (Post, 325). In the construction of the 2nd sect. of this act and of the 12 Geo. II. c. 28, s. 3, it has been held that the game of hazard is an unlawful game within them, whether played in private or at a public gaming-table. (M‘Kinnell v. Robinson, 3 M. & W. 434). Sect. 3. "And whereas (recites 9 Ann. c. 14, s. 2, with further direc tions as in the said act are particularly set forth): and whereas for the better discovery of the monies or any thing so won and to be sued for as aforesaid, it is by the said statute enacted, that all and every person or persons who by virtue of the said statute should or might be liable to be sued for any such sum or sums of money or valuable thing, should be obliged and compelled to answer upon oath such bill or bills as should be preferred against him or them for the discovery of the sum or sums of money to be won at play as aforesaid; but no provision is made or authority given to any court of equity to decree the same to be paid;" be it enacted, "that in case any bill or bills shall be brought, exhibited and filed in any court of equity against any person or persons for any sum or sums of money won by any person or persons after the said twenty-fourth day of June, 1745, contrary to the true intent and meaning of the said act, it shall and may be lawful for such court wherein such bill shall be brought, exhibited and filed, to proceed and decree thereupon and enforce such decree or decrees as shall be made in pursuance thereof in the same manner as is practised and used in other causes upon bills and answers depending in the courts where such bill shall be so brought and exhibited." By sect. 4, "for the more easy conviction of persons offending against this or any other former act for preventing excessive and deceitful gaming," it is enacted, "that it shall and may be lawful to and for such person or persons who have jurisdiction to hear and determine informations upon the statutes against excessive and deceitful gaming upon any information exhibited before them for any offence committed against this act or against the 12 Geo. II. c. 28, post, 325, or against the 13 Geo, II. c. 19, post, 328, to summon any person or persons other than the party accused to appear before them at a certain day, time and place to be inserted in such summons, and to give evidence for the discovery of the truth of the matter in the said information contained; and in case of neglect or refusal to appear, or if upon appearance such person or persons shall refuse to give evidence or shall give any false evidence, every such person or persons so offending shall forfeit and lose the sum of 50l.; to be levied by distress and sale of the offender's goods and chattels by warrant under the hands and seals of such person issuing such summons as aforesaid; and in case such person or persons not appearing, or neglecting or refusing to give such evidence, or giving any false evidence, shall not have sufficient goods and chattels whereon to levy the said sum of 501., every such person or persons shall be by such person or persons having jurisdiction as aforesaid committed to the common gaol for the county, city, or place where such offence shall be committed, there to remain for the space of six months without bail or mainprize." Sect. 5. "No person or persons other than the parties, plaintiff and defendant in the cause, shall be incapacitated from being a witness touch ing any offence committed against the laws for preventing excessive and deceitful gaming by reason of having played, betted, or staked at any game prohibited by this or any of the said statutes.” Sect. 6. "Nothing in this act contained shall extend to prevent or hinder any person or persons from playing at any game whatsoever, within any of his Majesty's royal palaces wherein his Majesty, his heirs and successors, shall then actually reside." Sect. 7. "No privilege of Parliament shall be allowed to any person or persons whatsoever against whom any prosecution or proceeding shall be commenced or had, for keeping of any public or common gaminghouse, or any house, room, or place for playing at any game or games prohibited by this, or any other act now in being, against excessive or deceitful gaming; any law, usage or custom to the contrary in any wise notwithstanding." Sect. 8. "If any person, after the commencement of this act, shall win or lose at play, or by betting, at any one time, the sum or value of 107., or within the space of twenty-four hours the sum or value of 20%., such person shall be liable to be indicted for such offence within six months after it is committed, either before his Majesty's justices of the King's Bench, assize, gaol delivery, or grand sessions; and being thereof legally convicted, shall be fined five times the value of the sum so won or lost; which fine (after such charges as the court shall judge reasonable allowed to the prosecutors and evidence out of the same) shall go to the poor of the parish or place where such offence shall be committed." [The latter part of this clause was introduced to prevent the necessity for an action for the fine, which was necessary under the 9 Anne, c. 14, s. 5, ante, 314]. Sect. 9. "If any person so offending shall discover any other person so offending, so that such person be thereupon convicted, the person so discovering shall be discharged and indemnified from all penalties, by reason of any such offence, if such person so discovering hath not been before convicted thereof, and shall be admitted as an evidence to prove the same." Sect. 10. "Nothing in this act contained shall extend, or be construed to extend, to repeal or invalidate the 9 Ann. c. 14, ante, 313. Sect. 11 relates to horse-racing. See it, post, tit. "Horses." In construction of the 8th sect. of this act, it has been held, that a wager on some matter arising from the game, and collateral to it, but not on the event itself, is not an offence within it; (Pope v. St. Leger, 1 Salk. 344; 1 Hawk. c. 92, s. 47); so that a bet on some dispute as to the mode of playing a game is not an offence. (Brown v. Leeson, 2 H. Bla. 43). Nor is a wager between two persons, that a third will run a certain distance in a specific time, within the statute. With respect to what is a losing "at one sitting," see Bones v. Booth, 2 Bla. Rep. 1226; Hodson v. Terrill, 1 C. & M., 801, ante, 316. With respect to the indictment, it is said that as the penalty is given to the poor of a parish, the offence should be stated to have been committed within that parish. (Stark. Crim. Law. 502; R. v. Luckup, 2 Stra. 1048). It is not necessary to prove the precise sum as laid in the indictment, if laid under a videlicet: contra, if the indictment averred that the defendant had won any bills of exchange of a specified amount. (R. v. Hill, 1 Stark. 359; and see R. v. Gillham, 6 T. R. 265). Under this act no action need be brought for the penalty, like under Action for penalty. the 9 Ann. c. 14, s. 5, ante, 314. (R. v. Luckup, 2 Stra. 1048). By the 5 Geo. IV. c. 83, s. 4, every person playing or betting in any Vagrants. open or public place, at or with any table or instrument of gaming, at any game or pretended game of chance, may be treated as a vagrant within the act. Playing at bowls is not, it seems, within the act. (1 Cowp. Rep. 25; see further, post, "Vagrants," Vol. VI.) As to gaming in prisons, see 4 Geo. IV. c. 64, s. 10, post, 370. In prisons. In public houses. 2. Keeping or haunting gaming-houses. Keeping one an oilence at common law. Punishment for. II. Keeping or Haunting Gaming Houses. A common gaming-house is a nuisance at common law, being detrimental to the public, as it promotes cheating and other corrupt praetices, and incites to idleness, and avaricious ways of gaining property, great numbers whose time might otherwise be employed for the good of the community. (1 Hawk. c. 25, s. 6; Rex v. Dixon, 10 Mod. 336; Rex v. Mason, Leach, C. C. 548). The keeper of it is indictable and punishable as for a misdemeanor, with fine or imprisonment, or both, (Id.); and by the 3 Geo. IV. c. 114, hard labour may be added to the imprisonment. In Rex v. Rogier and another, (1 B. & C. 272; 2 D. & R. 431, S. C.), the "keeping a common gaming-house, and for lucre and gain unlawfully causing and procuring divers idle and evil-disposed persons to frequent and come to play together at a game called rouge et noir, and permitting the said idle and evil-disposed persons to remain playing at the said game for divers large and excessive sums of money," was held an offence indictable at common law. Et per Abbott, C. J., S. C.—“I have no doubt that the facts stated in this indictment constitute an offence at common law. Hawkins, in the passage which has been cited, (viz. 1 Hawk. c. 25, s. 6,) observes, It has been said that common gaming-houses are nuisances in the eye of the law' and then he assigns the reason, riz. that they tend to produce certain evil consequences, which is not very different from saying that they are nuisances if those consequences are produced. Since his time many parties have been convicted upon indictments, in which the keeping of such a house has been charged to be an offence at common law. If any confirmation of the authority of Hawkins were wanting, it is to be found in the enactments of the legislature. The 25 Geo. II. c. 36, s. 5 (a), after reciting that, in order to 25 Geo. 2, c. 36. s. 5, encourage prosecutions against persons keeping bawdy-houses, gam declares the com mon law. ing-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%.' And section 8 recites, that by reason of many subtle and crafty contriv ances of persons keeping bawdy-houses, gaming-houses, or other disor derly houses, it is difficult to prove who is the real owner or keeper thereof, by which means many notorious offenders have escaped punishment; and then enacts, that any person who shall appear, act, or behave himself as master, or as the person having the care or manage ment of any such house, shall be deemed to be the keeper thereof, and shall be liable to be prosecuted as such, although he be not the real owner.' These provisions are a legislative declaration that the keeping of a gaming-house is an indictable offence. Besides, the 9 Anne, c. 14, s. 2, makes playing at any game unlawful, if more than 107. shall be lost. Now in this case the indictment states, not only that the defendants kept a common gaming-house, but that they permitted persons to play there for divers large and excessive sums of money. 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." Holroyd, J. in the same case, added, that, in his opinion, the indictment would have been sufficient merely to have alleged, that the defendants kept a common gaming-house. (And see Rex v. Taylor, B. & Cres. 502). (a) See ante, "Disorderly Houses," Vol. II. |