CHAPTER IV.

GAMING.

GAMING.

GAMING, by playing at Cards, Dice, or any other Games, Gaming not and all exercises, when practised without fraud and as a unlawful.

Where a London apprentice

recreation, are not offences at common law; such transactions, however, have never met with much encouragement when brought into a Court (a).

By the custom of London, it is a sufficient cause for a Master to turn away his Apprentice, that he frequents "frequents" Gaming, and he may justify it before the Chamberlain (b).

Gaming.

Where a Clergyman plays at un

lawful

Games.

Unfair or
excessive
Gaming.
Using false
Dice.

Winning ex-
orbitant
sums.

But it is laid down that the Bishop cannot refuse to induct a Clergyman when presented to a living, merely because he is a Player at unlawful Games, or a Haunter of Taverns (e); because, as Sir Simon Degge says, each of these is not malum in se, but only malum prohibitum (d).

An Indictment lies for unfair or excessive Gaming, which has always been considered illegal (e).

"Common players and hazarders with false Dice" are indictable (ƒ), and even an infant may be indicted for cheating with false Dice (g).

The winning of exorbitant sums of money has been discouraged both by Courts of Law and Equity. Thus, in the case of Sir Bazil Firebrasse v. Brett (h), it appeared that the defendant and Sir William Russell dined with the plaintiff at his house, and after dinner fell into play. When they began, the defendant and Sir William Russell had not above eight guineas between them, but they won about 9007. in ready money, which the defendant brought away with him. The plaintiff, upon losing this, being somewhat inflamed by wine, brought down a bag of guineas, containing about 1,5007., which the defendant also won; but as he was leaving the house with it in his possession, the plaintiff and his servants seized upon it, and took it from him. The plaintiff had brought an information against the defendant for playing with false Dice, but he was acquitted. The defendant then brought an action of Trespass against the plaintiff for taking from him in a forcible manner this bag of guineas. The Lord Chancellor granted an injunction to stay these proceedings at law, though the defendant had by answer denied all the circumstances of fraud charged in the Bill. And his Lordship said, that he thought the sum very exorbitant for a

(a) Bac. Abr. tit. Gaming, A.; Dalton, c. 23; Sherbon v. Coleback, 2 Vent. 175; Crockford v. Lord Maidstone, Appendix.

(b) Woodroffe v. Farnham, 2 Vern. 291.

(c) Specot's case, 5 Rep. 58 a, p. 118.

(d) Degge's P. C., Part 1, Chap. 1.

(e) 2 Rol. Abr. 78.

(f) Leeser's case, Cro. Jac. 497. (g) Bac. Abr. Infant (H.).

(h) Sir Bazil Firebrasse v. Brett, 1 Vern. 489; Sir Bazill Firebrass v. Brett, 2 Vern. 70.

man to lose at play in one night, and that if it was in his power he would prevent it; and cited the case of Sir Cecil Bishop v. Sir John Staples in the time of Lord Chief Justice Hale, about a Wager upon a Foot race, and that the Chief Justice said, in that case, that those great Wagers proceeded from avarice and were founded in corruption, and decided that he would give the defendant leave to imparl from time to time. His Lordship then said, that if such discouragement was given to Gaming at Common Law, it ought much more to be done in a Court of Equity.

By 12 & 13 Vict. c. 106, s. 201, no Bankrupt was enti- Losses by a tled to his Certificate if he should have lost by any sort of bankrupt. Gaming or Wagering in one day 201., or within one year next preceding his Bankruptcy 2007., either by Gaming or Wagering, or "by any Contract for the purchase or sale of any Government or other Stock, when such contract was not to be performed within one week after the contract, or where the Stock bought or sold was not actually transferred or delivered, in pursuance of such contract" (i). But this clause was repealed by 24 & 25 Vict. c. 134.

Cheating in a Game or at Play is now an indictable Cheating in a offence; for by the 17th section of 8 & 9 Vict. c. 109, it Game or at Play. is enacted, "that every person who shall by any fraud or unlawful device or ill practice in playing at or with Cards, Dice, Tables, or other Games, or in bearing a part in the Stakes, Wagers, or Adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any Game, Sport, Pastime, or Exercise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of obtaining such money or valuable thing from such other person by a False Pretence with intent to cheat or defraud such person of the same, and being convicted thereof shall be punished accordingly" (j).

Tossing coins for wagers is a sport, pastime or exercise if not a game within this section ().

The fraud or unlawful device" must be practised The fraud or during the Game itself to support an indictment for obtain- unlawful deing money by a false pretence, under 8 & 9 Vict. c. 109,

(i) 12 & 13 Vict. c. 106, s. 201.

(j) 8 & 9 Vict. c. 109, s. 17; and see Cheating in a Wager, ante, Part 3, Chap. 3. In the case of Burnett v. Allen (4 Jur., N. S. 488), the Court of Exchequer were

equally divided as to whether the
term "blackleg" was per se de-
famatory or not.

(k) Reg. v. O'Connor, 45 L. T.,
N. S. 512-C. C. R.

vice.

Conspiracy to cheat at Skittles.

Conspiracy to cheat at Cards.

Where a criminal infor

mation was refused.

Contracts for
Gaming.

Money deposited for Gaming.

s. 17; and it is not sufficient that a fraud was resorted to, to induce the prosecutor to play (1).

Where several persons confederated and combined together to play at Skittles, so that the play of one of them should betoken his skill to be much less than it really was, in order that the prosecutor (a looker-on) might be induced to play with him, and thereby lose to him his money: it was held to be an indictable conspiracy (m).

So, also, where C. and J. were indicted for conspiring to cheat certain persons out of money by playing at Cards, it appeared that J. went first into an Inn and sat down to drink; after some time C. made his appearance with a bag of nuts: he took not the slightest notice of J., but in a short time he pulled some cards out of his pocket, and proposed to play for the nuts. There were three Cards, and any person who selected the highest was to have a pennyworth of nuts for a halfpenny. Several persons played, and were allowed to win until all the nuts were gone. C. then proposed that they should play for a shilling; J. played and lost the first shilling; he then played again and won. Others played, but eventually C., who had won some money, was discovered cheating in concert with J.; upon this C. left the room, but was afterwards apprehended in J.'s company. It was shown that they were travelling and lodging together, notwithstanding they had pretended that they were strangers. The Jury found them both guilty (n).

A Criminal information was refused by the Court of Queen's Bench for a conspiracy to cheat, where it appeared that the persons making the application, as well as the other parties against whom it was made, were a set of Cheats and Gamblers (0).

By 8 & 9 Vict. c. 109 (p), "all contracts or agreements, whether by parol or in writing, by way of Gaming or wagering," are null and void.

And where money has been paid to a Stakeholder, in pursuance of a contract by way of Gaming, either party may recover back his share before it has been paid over (9). But in no case can the whole be recovered by the Winner.

(1) Reg. v. Bailey, 4 Cox, C. C. 397.

(m) Reg. v. Bailey, 4 Cox, C. C.

390.

(n) Reg. v. Clark and Jervis, before Mr. Justice Erle, Bodmin Spr. Ass. March 23, 1853.

(0) Rex v. Peach, 1 Burr. 548. (p) 8 & 9 Vict. c. 109, s. 18, Appendix.

(a) Cotton v. Thurland, 5 T. R. 408; Smith v. Bickmore, 4 Taunt. 474; Hastelow v. Jackson, 8 B. & C. 221; Hodson v. Terrell, 1 C. & M.

arms,

as to the re

covery of

The French law does not allow an action for a debt at French law play. But Games proper in the exercise of Feats of Foot races, Horse or Chariot races, Tennis, and other sports Stakes. of the same nature, which require address and agility of body, are excepted, subject to the power of the Court to reject the demand where the sum appears to be excessive (»).

covery of

Under the Proviso in the 18th section of 8 & 9 Vict. English law c. 109, the enactment in that section is "not to be deemed as to the reto apply to any subscription or contribution, or agreement Stakes. to subscribe or contribute, for or toward any Plate, Prize, or Sum of money to be awarded to the winner or winners of any lawful Game, Sport, Pastime or Exercise" (s). It is not clear what is excepted by the word Game in that Proviso, but it seems probable that the "Sum of money to be awarded to the winner at the termination of "any lawful Game, Sport, Pastime, or Exercise," is meant to be a sum ascertained before the commencement of such Game, &c., as distinguished from the case where it is uncertain what sum may be won or lost until the Game has concluded. It would appear, therefore, that so long as the money won is a Stake and not a Bet, and the Game, &c. is lawful, and perhaps the sum ascertained before the commencement of such Game, &c., the winner may maintain an action against a loser for his Subscription or Contribution to the Stake (t).

The following are lawful Games, Sports, Pastimes or Lawful exercises-Horse Races (u), Steeple Chases (r), Trotting Games, &c. Matches (y), Coursing Matches (z), Foot Races (a), Boat Races (b), Regattas (c), Rowing Matches (c), Golf, Wrest

802; Hampden v. Walsh, L. R., 1 Q. B. D. 189; 45 L. J., Q. B. 238; 33 L. T., N. S. 852; 24 W. R. 607; Diggle v. Higgs, L. R., 2 Ex. D. 422; 46 L. J., Ex. 721; 37 L. T., N. S. 27; 25 W. R. 777C. A.; Trimble v. Hill, L. R., 5 App. Cas. 312. See ante, p. 396.

(r) Code Civil, Book 3, tit. 3, Chap. 1, art. 1965, 1966.

(s) 8 & 9 Vict. c. 109, s. 18, Appendix; and see Wagers, ante, Part 3, Chap. 3.

(t) The distinction between a Stake and a Bet was taken in Connor v. Quick, cited 2 W. Bla. 708. See also Batty v. Marriott, 5 C. B. 818; Diggle v. Higgs, L. R., 2 Ex. D. 422; 46 L. J., Ex. 721;

37 L. T., N. S. 27; 25 W. R.
777-C. A., ante, p. 394.

(u) See the Law as to Racing,
ante, Part 3, Chap. 2.

(x) See Evans v. Pratt, 4 Scott, N. R. 378.

(y) See Holmes v. Sixsmith, 7 Exch. 802.

(-) See Daintree v. Hutchinson, 16 M. & W. 87; Emerson v. Dickson, ante, p. 400.

(a) See Batty v. Marriott, 5 C. B. 818; Coates v. Hatton, 3 Stark. 61.

(b) See Cheeseman v. Hart, ante,

p. 409.

(c) See Bostock v. North Staffordshire Railway Co., 4 E. & B. 798.