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

Font size: 10 px 15 px 20 px 25 px 30 px 35 px

Background color: BlackWhiteGrayLight GrayDark GrayDim Gray

Text color: BlackWhiteGrayLight GrayDark GrayDim Gray

Apply/Save settings

Ebook has 909 lines and 103768 words, and 19 pages

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."

"This section shall not be deemed to render unlawful a subscription or contribution or agreement for any subscription or contribution for any plate, prize, or sums of money of the value of 500 rupees or upwards, to be awarded to the winner of any horse-race."

It is evident that nearly all the cases decided on the English Statute will apply to these provisions of the Indian Act.

The questions which have arisen as to the construction and effect of the Statute 8 & 9 Vict., c. 109, s. 18, may perhaps be grouped under the three following main headings.

It is essential to a wager-contract that "one party should win and another should lose upon a future uncertain event.... Some transactions, however, on which the parties may win or lose upon a future uncertain event, are not within 8 & 9 Vict., c. 109; for instance, the sale of next year's apple crop, in which the parties may be losers or winners, but the essential element of a wager-contract is wanting."

When we come to the law as to stakeholders, we have occasion to make one or two suggestions as to the rights or duties of executors where their testator has actually paid in respect of entries, stakes, &c.

If the rule were altered as suggested, it would be wise for turfites to give their executors full powers in their wills.

The law as now settled in England has been incorporated into the Indian Contract Act, Art. 88 of which provides that "a contract for the sale of goods to be delivered at a future day is binding though the goods are not in the possession of the vendor at the time of the contract, and though he has not at the time any expectation of acquiring them otherwise than by purchase."

Questions frequently occur as to the rights as between principal and agent when the latter has been employed by the former to make a wager for him. We have then to consider--

The rights of the principal against the agent.

The rights of the agent against the principal.

The general result appears to be, that the contract between the principal and the agent, by which the latter undertakes to carry out wagering transactions on behalf of the former, does not itself partake of the nature of a wager.

The next class of cases in which the application of the statute has come in question is where an agent has been employed to enter into wager-contracts on behalf of a principal; the bets are lost; the agent pays, and seeks to recover from the principal.

Upon this matter two distinct questions have arisen.

From these remarks of the MASTER OF THE ROLLS it would seem That the implied authority of the agent to pay depends on the knowledge of the principal that the agent was himself liable legally or otherwise, which knowledge would probably be presumed in cases of betting through regular betting agents, as in both such cases it is well known that the agent is bound by usage to incur personal responsibility. That the principal might withdraw this implied authority to pay any time before the agent had paid the money over to the winner, and so prevent the agent's paying on his account.

Perhaps the more logical and less artificial way of putting the rights of the agent is the alternative suggested by HAWKINS, J.--his right to indemnity. The "authority coupled with an interest" seems rather too wide, seeing that the agent has an interest in making the bet directly the instructions are given; yet the judgments seem to recognise that the authority could have been withdrawn before the bet was made.

The case has lately been decided by the Court of Appeal. BOWEN and FRY, L.JJ., affirming the decision of HAWKINS, J., BRETT, M.R., dissenting. The grounds upon which the MASTER OF THE ROLLS bases his judgment are that, although an authority might imply an authority to pay, yet, as betting contracts were void, and as the only inconvenience to the agent consists in his being barred from pursuing a calling to which the law wholly objects, no promise could be implied that such authority should not be revoked. His lordship considered that as a matter of fact defendant had revoked plantiff's authority to pay; thus differing on that point from HAWKINS, J. BOWEN, L.J., treats the whole question as an inference of fact. In his lordship's opinion, the only inference of fact proper to be drawn was that if the agent carried out his contract, and involved himself in a difficulty, from which he could only escape by paying money, the defendant was to indemnify the plaintiff; further that the plaintiff had paid the bets by virtue of a contract between himself and his principal, that the latter should not revoke the original contract.

His lordship therefore treats the matter somewhat differently from HAWKINS, J., for it will be observed that in the Court below, HAWKINS, J., treats the implied authority to pay as an inference of fact; which was no doubt amply justified by the previous dealings between the parties, while he deals with the question of revocation of authority as a matter of law.

However, perhaps the result of the authorities may be shortly expressed in the following way:-- Authority to pay is implied in authority to bet where the agent lays the bet in his own name, and where to the knowledge of the defendant non-payment of the bet would entail serious inconvenience to the agent.

That under such circumstances the authority to pay is irrevocable directly the bet has been made.

Of course the agent must prove that the payment made to the winner of the bet was an authorised payment. In none of the cases as between principal and agent has any dispute arisen either as to whether the bet remained valid to the end, or whether the horse really lost or won. It is however, by no means impossible that such questions might be put in issue. Supposing after the bet was made the nominator of the horse, in respect of which the bet was made, died, so that the bet would be off, or supposing defendant had instructed plaintiff to back horse A; horse B is placed first by the judge and A second, but B is disqualified afterwards for reasons which would cause the bets to go with the stakes. It is obvious that if the agent paid on this as for losses he could not recover from his principal. The real point of difficulty is on what evidence the Court would act. It is submitted That the employment of an agent to make bets in a betting market implies an authority to bet according to the rules and usages of such market, and that the Court would look at the Rules of Betting or other document proved to regulate such transactions. That in all bets the question whether a horse is the winner or the loser is impliedly to be determined by the Rules and Conditions under which the particular race is run. We shall hereafter, page 74, deal more fully with the term "winner," but it will be noticed all the cases thereunder were decided on a construction of the Rules and Conditions.

Nearly all the questions which have arisen on this part of the section relate to the right of a party to a wager to recover his stakes from a stakeholder with whom both parties have deposited their stakes. Such questions are of course entirely distinct from the right of the winner to recover the whole stakes from the stakeholder, as they usually occur when one party desires to repudiate the wager, and brings his action before the stakeholder has paid over the money to the winner.

All such questions as to the right to recover a deposit from a stakeholder have, since the passing of the Statute 8 & 9 Vict., c. 109, turned out on the construction of the words "no action shall be brought," &c. There is a long series of decisions to the effect that this provision only applies to actions brought by the winner of a wager either against a stakeholder or against the loser to recover his winnings, and does not prevent either party from revoking the authority of the stakeholder before the money is paid over to the winner, and suing to recover his stakes.

The same view seems to have been taken of the matter by the Irish Courts.

It seems, therefore, to be clearly settled law, subject only to reversal by the House of Lords, that a stakeholder holds each stake as agent for the depositor and that a depositor can recall his stake at any time before it is paid over to the winner, whether before or after the event has been decided. It was, however, held in two cases that where the owner entered a horse that was afterwards disqualified he could not recover his stakes on the ground that he would be playing a game of heads I win, tails you lose. But it is very doubtful whether these decisions would be supported at the present day considering the bias of the more recent cases.

His authority may be determined in the same way as that of an ordinary agent--

It will be remembered that it has been suggested above that the deposit of stakes by the competitors in a race is the same thing legally as the deposit in respect of an ordinary bet. If it be true, therefore, that the death of a depositor revokes the authority of the stakeholder with respect to that particular stake, it would seem that where a competitor in a race happens to die between the time of paying his stake or forfeit and the time when the whole is paid to the winner strictly speaking and from a legal point of view the stakeholder should repay them to his representatives, seeing that by Rule 156 of the Rules of Racing stakes and forfeits are part of the fund payable to the winner. The same would apply to entrance money where, according to Rule 160, it is payable to the winner as part of the stakes. But, of course, entrance money would not be part of the stakes where, as is usual, it is paid into the race fund.

A question has occasionally been raised whether a steward who nominates a stakeholder can be made liable for the latter's insolvency or default. It is difficult to see how he could be without express agreement, or perhaps unless he wilfully appointed a man unfit for the post.

It may here be convenient to consider the rights of the parties with respect to money deposited by one party with the other on bets made between the two.

It was proved that by the custom among betting men bets are off on the death of one of the parties. It was held that in respect of bets decided against testator in his life time, the executrix was not justified in paying either the sum won or the deposit; but that as to the bets which had not been decided, she was justified in repaying the deposits. KNIGHT BRUCE, L. J., put the case on the ground that the contract being illegal, the executrix was justified in determining the bets before they came off. It is difficult to justify the first part of this decision relating to the deposits on the bets which had been decided in testator's life time. A makes a ready money bet with a book maker at 5 to 1, depositing the ?1 with him. A's horse wins; A of course cannot recover the ?5, but why not the ?1? The truth seems to be that the deposit is made as a security for what A might lose to B on the bet, an event which became impossible. The fallacy seems to be treating the betting contract as illegal; no doubt if A had lost the bet he could not have recovered the deposit .

It will, however, be noticed that the section speaks of a deposit on any bet, as or for the consideration for any assurance as aforesaid. Now the assurance spoken of in the previous section refers only to an agreement to pay on the contingency of a horse-race or other sport. It would seem, therefore, that while the penal provisions of section 4 are confined to deposits on bets on horse-races, &c., the right of action given by section 5 to recover deposits on any bet applies to bets of every kind, and therefore to wagering transactions, &c., on stocks and shares. It is to transactions of the latter kind that this question would have a practical application. In the outside Stock Exchange places, commonly known as "bucket shops," bargains for differences are well known. .

The insertion of the clause commencing with the words, "no action shall be brought," may, perhaps, have a practical significance in one case, where an action is brought in England on a wager-contract made in a foreign country where such contracts are enforceable.

It will be sufficient for present purposes to state a few general rules which prevail in a case of what is called a conflict of laws:--

The formalities necessary for a contract must be decided by the law of the place where the contract is made.

Questions of procedure are decided according to the law of the forum where the case is tried.

There are three series of questions on this proviso.

If this case were good law, it would follow that the real test to be applied is, whether or not the money were deposited before the event came off in the hands of a stakeholder.

Per ERLE, J.: "The distinction is between gaming and cases where a person either pays down a contribution to a stake, or holds himself forth as having contributed." Per CRAMPTON, J.: "This was an agreement, if you win, I pay you; if you lose, you pay me."

Per CRAMPTON, J.: "If it be an ordinary wager it is unlawful; all betting is disallowed, but an exception is made on what I may call a particular species of wagering, namely, a number of persons making a fund, the whole of which is to become the property of the successful party."

That the agreement was a mere wager, in spite of the fact that the money was deposited with a stake holder;

That the proviso in favour of subscription to a prize was only meant to apply to agreements which were not in the nature of wagers. Per Lord CAIRNS, L. C.: "It is clear that there may be in scores of forms 'subscriptions or contributions' towards a plate or prize without there being any wager, and I cannot read this proviso, which has a natural and intelligible meaning, in a different way, any one which would have the effect of neutralizing the enactment.... 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.'"

That the enactment avoiding wagers apply to all wagers, irrespective of the legality or illegality of the game.

It is some argument in favour of this view that section 6 of the Betting House Act exempts from the penal provisions of the Act any "deposit of stakes." This would have been unnecessary if a sweepstakes were not in the nature of a wager.

A case that seems to fall within this rule is that of breeders' stakes, where a certain sum is, by the conditions of the race, to be awarded to the breeder of the winner. It would seem according to the above case that not being the owner of the animal winning, the breeder could not recover under this proviso of the section.

It is obvious that any person suing to recover stakes as winner has cast upon him the burthen of proving himself to be such. The determination of such a question will generally depend upon agreement or special conditions by which competitors agree to be bound. Thus, horse-races are generally run either subject to the rules of the Jockey Club, or subject to specially advertised regulations. However, it may be taken that the winner is declared by the judge, all further questions or objections--as to, for instance, qualification--being decided by the stewards.

N.B.--This case by no means decides that an umpire never has power to award the stakes to a person whose horse has simply walked over the course.

Plaintiff sued defendant for the whole of the stakes as winner of the race. He contended that the rules of the Jockey Club had not been complied with, inasmuch as the stakes had not been deposited with the treasurer of the club; therefore the race had never been run according to agreement; that the stewards had not fairly decided the case, having refused his request for a further adjournment.

But where the agreement does not contemplate any special method of deciding disputes, the Court will construe it. If necessary, parol evidence will be admitted to explain conventional or sporting terms.

It may, perhaps, be mentioned here that the term "play or pay" is well known and understood both in racing and betting matters. In most races the conditions provide, that if the owner of a horse nominated withdraws him from the race he pays a smaller sum than the stake, usually half the stake, by way of "forfeit." In some cases, however, he still remains liable for the whole stake and then it is called a "play or pay" race. So in betting, to say that a bet is "p.p." means that if the horse backed does not run the backer still has to pay.

In construing an agreement, the Court will look at the Rules of Racing or other the conditions of the race, but it seems that any sporting agreement should be stamped before the Court can look at it.

At least this would appear to be the case so far as regards the authority of the stakeholder to pay over mere stakes to the winner; the waiver of the competitors who have subscribed them would be sufficient. But in the case of a Plate, or where there is "added money" contributed by an outsider, the consent of such person or persons would be necessary before any of the conditions could be waived. Compare with this suggestion Rule of Racing 143, which provides that in a sweepstakes the competitors may waive a walk over, but in a Plate the consent of the Stewards is necessary.

Share on: WhatsApp @Hash Facebook Tweet