Page:EB1911 - Volume 11.djvu/466

Rh office, room or other place for the purpose (inter alia) of any person betting with persons “resorting thereto” or of receiving deposits in consideration of bets on contingencies relating to horse-races or other races, fights, games, sports or exercises. The act especially excepts persons who receive or hold prizes or stakes to be paid to the winner of a race or lawful sport, game or exercise, or to the owner of a horse engaged in a race (s. 6). Besides the penalties incurred by keeping such places, the keeper is liable to repay to depositors the sums deposited (s. 5).

By the Licensing Act 1872 penalties are incurred by licensed persons who allow their houses to be used in contravention of the Betting Act 1853. There has been a great deal of litigation as to the meaning and scope of this enactment, and a keen contest between the police and the Anti-gambling League (which has been very active in the matter) and the betting confraternity, in which much ingenuity has been shown by the votaries of sport in devising means for evading the terms of the enactment. The consequent crop of legal decisions shows a considerable divergence of judicial opinion. The House of Lords has held that the Tattersall’s enclosure or betting ring on a racecourse is not a “place” within the statute; and members of a bona-fide club who bet with each other in the club are not subject to the penalties of the act. But the word “place” has been held to include a public-house bar, an archway, a small plot of waste ground, and a bookmaker’s stand, and even a bookmaker’s big umbrella, and it is difficult to extract from the judges any clear indication of the nature of the “places” to which the act applies. The act is construed as applying only to ready-money betting, i.e. when the stake is deposited with the bookmaker, and only to places used for betting with persons physically resorting thereto; so that bets by letter, telegram or telephone do not fall within its penalties. The arm of the law has been found long enough to punish as thieves “welshers,” who receive and make off with deposits on bets which they never mean to pay if they lose. The act of 1853 makes it an offence to publish advertisements showing that a house is kept for betting. It was supplemented in 1874 by an act imposing penalties on persons advertising as to betting. But this has been read as applying to bets falling within the act of 1853, and it does not prohibit the publication of betting news or sporting tips in newspapers. A few newspapers do not publish these aids to ruin, and in some public libraries the betting news is obliterated, as it attracts crowds of undesirable readers. The act of 1853 has been to a great extent effectual against betting houses, and has driven some of them to Holland and other places. But it has been deemed expedient to legislate against betting in the streets, which has been found too attractive to the British workman.

By the Metropolitan Streets Acts 1867 any three or more persons assembled together in any part of any street in the city of London or county of London for the purpose of betting and deemed to be obstructing the street, may be arrested without warrant by a constable and fined a sum not exceeding

£5. The Vagrancy Act 1873 (36 & 37 Vict. c. 38) provides that “Every person playing or betting by way of wagering or gaming on 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 gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.” This act amended a prior act of 1868, passed to repress the practice of playing pitch and toss in the streets, which had become a public nuisance in the colliery districts. The powers of making by-laws for the peace, order and good government of their districts, possessed by municipal boroughs—and since 1888 by county councils—and extended in 1899 to the new London boroughs, have in certain cases been exercised by making by-laws forbidding any person to “frequent or use any street or other public place, on behalf either of himself or any other person, for the purpose of bookmaking, or betting, or wagering, or agreeing to bet or wager with any person, or paying, or receiving or settling bets.” This and similar by-laws have been held valid, but were found inadequate, and by the Street Betting Act 1906 (6 Edw. VII. c. 43), passed by the efforts of the late Lord Davey, it is made an offence for any person to frequent or loiter in a street or public place on behalf of himself or of any other person for the purpose of bookmaking or betting or wagering or agreeing to bet or wager or paying or receiving or settling bets. The punishment for a first offence is fine up to £10, for a second fine up to £20, and the punishment is still higher in the case of a third or subsequent offence, or where the accused while committing the offence has any betting transaction with a person under the age of sixteen. The act does not apply to ground used for a course for horse-racing or adjacent thereto on days on which races take place; but the expression public place includes a public park, garden or sea-beach, and any unenclosed ground to which the public for the time have unrestricted access, and enclosed places other than public parks or gardens to which the public have a restricted right of access with or without payment, if the owners or persons controlling the place exhibit conspicuously a notice prohibiting betting therein. A constable may arrest without warrant persons offending and seize all books, papers, cards and other articles relating to betting found in their possession, and these articles may be forfeited on conviction. Besides the above provision against betting with infants the Betting and Loans (Infants) Act 1892, passed at the instance of the late Lord Herschell, makes it a misdemeanour to send, with a view to profit, to any one known by the sender to be an infant, a document inviting him to enter into a betting or wagering transaction. The act is intended to protect lads at school and college from temptation by bookmakers.

We must now turn from the public law with respect to gaming to the treatment of bets and wagers from the point of view of their obligation on the individuals who lose them. A wager may be defined as “a promise to give money or money’s worth upon the determination or ascertainment of an

uncertain event” (Anson, Law of Contract, 11th ed., p. 206). The event may be uncertain because it has not happened or because its happening is not ascertained; but to make the bargain a wager the determination of the event must be the sole condition of the bargain. According to the view taken in England of the common law, bets or wagers were legally enforceable, subject to certain rules dictated by considerations of public policy, e.g. that they did not lead to immorality or breach of the peace, or expose a third person to ridicule. The courts were constantly called upon to enforce wagers and constantly exercised their ingenuity to discover excuses for refusing. A writer on the law of contracts discovers here the origin of that principle of “public policy” which plays so important a part in English law. Wagering contracts were rejected because the contingencies on which they depended tended to create interests hostile to the common weal. A bet on the life of the emperor Napoleon was declared void because it gave one of the parties an interest in keeping the king’s enemy alive, and also because it gave the other an interest in compassing his death by unlawful means. A bet as to the amount of the hop-duty was held to be against public policy, because it tended to expose the condition of the king’s revenue to all the world. A bet between two hackney coachmen, as to which of them should be selected by a gentleman for a particular journey, was void because it tended to expose the customer to their importunities. When no such subtlety could be invented, the law, however reluctantly, was compelled to enforce the fulfilment of a wager. Actions on wagers were not favoured by the judges; and though a judge could not refuse to try such an action, he could, and often did, postpone it until after the decision of more important cases.

Parliament gradually intervened to confine the common law within narrower limits, both in commercial and non-commercial wagers, and both by general and temporary enactments. An example of the latter was 7 Anne c. 16 (1710), avoiding all wagers and securities relating to the then war with France. The earliest general enactment was 16 Car. II. c. 7 (1665), prohibiting the recovery of a sum exceeding £100 lost in games or pastimes, or in betting on the sides or hands of the players, and avoiding securities for money so lost. 9 Anne c. 19 avoided securities for such wagers for any amount, even in the hands of bona-fide holders for value without notice, and enabled the loser of £10 or upwards to sue for and recover the money he had lost within three months of the loss. Contracts of insurance by way of gaming and wagering were declared void, in the case of marine risks in 1746, and in the case of other risks in 1774. It was not until 1845 that a general rule was made excluding wagers from the courts. Section 18 of the Gaming Act 1845 (passed after a parliamentary inquiry in 1844 as to gaming) enacted “that all contracts or agreements, whether by parole 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 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; 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 winner or winners of any lawful game, sport, pastime or exercise.”

The construction put on this enactment enabled turf commission