Read Ebook: The law relating to betting time-bargains and gaming by Cautley Henry Strother Stutfield G Herbert

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Ebook has 909 lines and 103768 words, and 19 pages

Statute makes Wagers Void, not Illegal, 29-; Indian Law of Wagers, 31.

Decisions under the Statute--

TRANSACTIONS ON THE STOCK EXCHANGE.

Review of Law relating to Wager Contracts, 123.

LOTTERIES.

GAMING HOUSES.

BETTING HOUSES.

PROCEDURE.

Search Warrants against Gaming and Betting Houses and arrest of persons found therein, 196-202.

Public Place, Betting in, 205; Instruments of Gaming, 205; a Public Place, 206; Game of Chance, what is, 207.

Betting in Metropolitan Street, 208.

B. Rules on Betting.

TABLE OF CASES.

PAGE

Ferrao's case 44

THE LAW OF BETTING.

The law, however, was different where the question related to a matter affecting either or both of the parties to the wager.

While for the defendant it was argued that the wager was of a frivolous, immoral nature, and that at most plaintiff could only recover his share of the entertainment, it was replied for the plaintiff, that the wager relating to the parties themselves was not void as if it related to a stranger; that it was not of an immoral nature, as "it was for the public benefit to promote conviviality and good humour;" that the plaintiff's loss of a share in a good dinner was not a frivolous loss in the eye of the law. Indeed, it appeared from a quotation from the Roman law, that that very universal system of jurisprudence, while discouraging wagers in general, recognised an exception where the terms of the wager bound either party to provide any form of conviviality.

MANSFIELD, C. J., having confessed himself judicially ignorant of the meaning of the term "Rump and dozen," parol evidence was admitted to explain this exceedingly patent ambiguity. The term, as explained by the witnesses, seemed at any rate to bring the case within the Roman law, it being stated to signify "a good dinner and plenty of wine for all present." Upon this state of the facts, the judges, while regretting that they had allowed the action to trouble the Court at all, judicially decided that there was nothing immoral in sitting down to a festivity! Therefore, adjudging the wager to be valid, the Court, in spite of the fact that defendant had not partaken of the dinner, ordered him to pay for the whole of it. This case is a good illustration of the kind of issues which the Courts had to try, when wagers were enforceable.

Wagers concerning any illegal sport or game, such as a cock-fight, or hazard.

Where one party could determine the event in his own favor, as a wager by an attorney's clerk that he would not pass his examination.

Wagers were also illegal which gave either party an interest in doing or procuring some unlawful act, as a wager that Napoleon would be assassinated by a oration day, or which might bias a person in the discharge of a public duty, such as a wager between two voters as to the election of a member for a county; but this was not the case where the wager was made between two persons who were not voters for that county.

That if any person or persons of any degree or quality whatsoever, at any time or times, shall, by any fraud or shift in playing at or with cards, dice tables, tennis, bowls, skittles, shovel-board, or in cock-fighting, horse-races, dog matches, or other pastimes or games whatsoever, or in bearing a share or part in the stakes, wagers, or adventures, or in or by betting on the sides or hands of such as do or shall play, act, ride or run as aforesaid, win, obtain, or acquire to him or themselves, or to any other or others any sum of money or valuable thing, shall forfeit treble the sum or value of the thing won.

Sect. 3. Any person who shall play at any game aforesaid, or any other game other than with or for ready money, or shall bet on the sides of them that do 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 otherways, and shall not pay down the same at the time when he or they shall lose the same, shall not be compellable to make good the same, but the contract or contracts for the same, and for every part thereof, and all and singular judgments, statutes, recognisances, mortgages, conveyances, occurrences, bonds, bills, specialities, promises, covenants, agreements, and other acts, deeds, and securities whatsoever given for the same shall be void.

It will be observed that this statute aims solely at cheating at play; excessive gaming on credit. It does not make wagering illegal so long as it is unaccompanied by fraud, and the parties are at liberty to wager to any extent provided they pay ready money.

The next statute is 9 Anne, c. 14.

Section 1. All notes, bills, bonds, judgments, mortgages, or other securities or conveyances whatsoever, given, granted, drawn, entered into, or executed by any person or persons whatsoever, where the whole or any part of the consideration of such conveyances or securities shall be for any money, or other valuable thing whatsoever won by gaming or playing at any game whatsoever, or by betting on the sides or hands of them that do or shall game at any of the said games, or for repaying any money knowingly lent for the purpose of gaming or betting as aforesaid, or lent or advanced at the time and place of such play to any person playing shall be void to all intents and purposes, and that all property so encumbered shall devolve on such person as would be entitled if the owner were dead.

Section 5 inflicts penalties on any person winning any sum of money by any fraud, and on any person who should win over ?10 from any person or persons at one time or sitting.

It should be noted that the statute only speaks of betting on the sides of them that "do and shall" play.

It should be noticed that the only alteration in the law made by this statute is that instead of avoiding the securities, given for gaming debts altogether, it declares that the consideration for which they are given shall be illegal, or in other words, it puts such securities on the same footing as those which are given for an illegal consideration.

We have to consider--

The statute only applies to bets on games, which term, as has been explained under the Statute of Anne, includes horse races. It must be remembered that the decisions under the latter statute apply to the present statute, except so far as the present statute has expressly altered the provisions of the earlier statute.

That plaintiff was not precluded from recovering by sections 2 and 5 on the ground that by a fair construction of the statutes, the penalties inflicted on "the winner," &c., only applied where there was a corresponding "loser" of over ?10, and in this case the loss of each person was ?2 only. It was, however, the Court added, unnecessary to decide that point, as the plaintiff was at any rate entitled to recover the ?15, which had been subscribed by a stranger by way of prize to the winner; and the defendant's plea was bad as having covered too much.

It will be seen that the decision leaves untouched the question as to the right to recover where the stakes amount to ?10 each; but it would seem that this question could now only be of importance where a bill or note had been given to the winner for the amount, and the winner sues on that instrument; otherwise any such case would now fall under the Statute 8 & 9 Vict. c. 109 .

The Statute of Anne avoided all securities for money knowingly lent for gaming or betting or advanced at the time and place of such gaming to any person so gaming or betting, or that should during such gaming or betting so play or bet. The following propositions would seem to explain the law as to money lent for gaming purposes.

As already explained the statute avoids the contract as well as the security.

It only applies to money lent for gaming or betting on games and horse races.

The words of the statute seem to establish an irrebuttable presumption that money advanced during play to any one who at the same sitting or meeting should take part in such games or betting was knowingly advanced for that purpose.

The statute does not apply to money advanced to pay debts already incurred.

The statute does not apply to money lent for gaming abroad.

It is sometimes difficult to determine whether a transaction, to some extent mixed up with an illegal transaction, is so inseparable from it as to be within the statute.

It was remarked by POLLOCK, B., that the two statutes quoted only applied to contracts and securities as between the parties to the wager.

The result of these enactments, stated in the language of the law at the present day, seems to be shortly as follows:--

A bill or note accepted or made for a gaming debt is subject to a defect in title.

If such instrument be overdue, any transfer is made subject to such defect.

As will be seen by reference to any work on Bills of Exchange, mere absence of consideration does not constitute a defect of title: consequently the indorsee for value of an overdue accommodation bill can recover on the bill from the acceptor.

The evidence showed that defendant lost money at play to one Aldridge, and accepted a bill for the amount drawn by Aldridge. Aldridge indorsed to Knight. It was then agreed between defendant and Aldridge that defendant should in substitution for the bill give Knight his note of hand for the amount Knight indorsed to plaintiff.

But under the Rules of Court the judge at the trial has power to allow amendments in the pleadings upon terms as to costs or otherwise.

Again, if part of the consideration for which an instrument is given be illegal, the whole is vitiated.

But here a distinction must be drawn between contracts that are divisible and those that are indivisible.

The Statute 8 & 9 Vict., c. 109, s. 18 provides "that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering shall be null and void, and no suit shall be brought or maintained in any court of law or equity to recover any sum of money or valuable thing alleged to be won upon any wager or which should have been deposited in the hands of any person to abide the event on which any wager should have been made. Provided that this enactment shall not be deemed to apply to any subscription, 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 or pastime."

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