Chapter XXV: Section 4: of the earlier Act expressly mentions the banker or croupier

of such a house. It is presumed that the decision in _Rex_ v. _Cook_,[327] which arose under the Betting House Act (see _post_), would apply to this section, viz., that the law only extends to persons taking a share in the illegal part of the business.

In _Turpin_ v. _Jenks_ the committee in whom, by the Rules of the Club, the management of the club was vested, were held liable as managers.

(3.) Obstructing officers authorised to enter a house under the provisions of section 3 or section 6 of 8 & 9 Vict., c. 109—penalty £100 or six months’ imprisonment, section 1 of 17 & 18 Vict., c. 38.

(4.) Any person found in a gaming house by officers entering under the above power, and giving a false name and address or refusing to give his name and address, is liable to a penalty of £50 or three months.

[Sidenote: What constitutes a gaming house.]

It is now necessary to inquire what constitutes a common gaming house within these Acts. It must, however, be remembered that persons may be brought within the above provisions concerning resisting officers and giving false names and addresses, even though it may turn out that a particular house be not eventually proved to come within the Acts. The officer’s justification for entry is the magistrate’s warrant, or in the metropolis the direction of the commissioners. So that the owners of a house could not justify any resistance to constables who enter by virtue of the Act, by proving that the house is not a gaming house.[328]

The question as to the evidence necessary to prove that a house is a gaming house, is partly answered by the statutes.

[Sidenote: Evidence.]

Thus, section 2 of 8 & 9 Vict., c. 109, after reciting that doubts had arisen whether houses open to subscribers only were common gaming houses, provides that in default of other evidence it shall be sufficient to prove—(1) That the house or place is kept or used for the purpose of playing therein any unlawful game. The subject, Unlawful Games, has been treated above, page 152. (2) That a bank is kept there by some of the players exclusively of the others. (3) That the chances of any game played therein are not alike favourable to all the players.

By section 8, where any cards, dice, balls, counters, tables, or other instruments of gaming used in playing any unlawful game shall be found in any house, room, or place suspected to be used for a common gaming house, and entered under a warrant or order issued under the provisions of this Act,[329] or about the persons of those who shall be found therein, it shall be evidence until the contrary appears, that such house, room or place is used as a common gaming house, _and_ that the persons found therein were playing therein.

By 17 & 18 Vict., c. 38, s. 2, where any constable authorised under 8 & 9 Vict. to enter any house, &c., is wilfully prevented, or obstructed, or delayed in entering in the manner specified, or where any external or internal door of or access to any such house, &c., is found fitted or provided with any bolt, bar, chain, or other means of contrivance for the purpose of obstructing such officers, or for giving an alarm in case of such entry, or if such house is found provided with any means or contrivance for unlawful gaming, or for concealing, removing, or destroying any instrument of gaming, it shall be evidence, until the contrary be made to appear, that such house is used as a common gaming house.[330]

[Sidenote: Private houses.]

It must be remembered that a club or private house may equally be a common gaming house as a public place of resort. This is clear from the recitals of section 2 just quoted. The matter is also put beyond all doubt by the late case of _Turpin_ v. _Jenks_,[331] where Mr. Justice HAWKINS says that to hold otherwise would lead to evasion by placing a wide limit on the numbers.

It would appear, also, from the same case that a house or club might still be a common gaming house, if it were kept for the double purpose of social pursuits and gaming, if gaming were one of the objects for which the club was formed, or a house kept open. [Sidenote: Excessive gaming evidence.] It is also expressly laid down that excessive gaming is evidence that a house is a common gaming house. Mr. Justice SMITH considering that excessive gaming was unlawful in itself, in spite of the repeal of the provisions of the Act of Anne, and section 8 of 18 George II.

[Sidenote: Keeping a house for public billiards.]

By section 11 of 8 & 9 Vict., c. 109, any person keeping a house or place for public billiards without a license, or without a victualler’s license for the house, and without the words “licensed for billiards” written outside, is liable to be proceeded against as the keeper of a common gaming house.

In section 4 of the Act of 1854 we find, if not a new offence, at any rate a new phraseology. [Sidenote: Keeping a house for unlawful gaming.] The offence there spoken of is not keeping a common gaming house but keeping a house “for unlawful gaming.” What unlawful gaming consists in is not defined: the Legislature evidently supposing that the terms had already received judicial interpretation. The Act of 1845 and the previous sections of the statutes seemed to refer to common gaming houses; and it will be remembered that section 2 of the earlier Act made the playing of any unlawful game in a house evidence that the house was a common gaming house. It will be seen that the term “unlawful gaming” has just received a construction which places it on the footing of a generalization; embracing the two species of offence, viz., playing an unlawful game and keeping a gambling house. The effect and meaning of the term “keeping a house for unlawful gaming,” has of late been thoroughly discussed in the case of _Turpin_ v. _Jenks and others_,[332] commonly known as the Park Club case. Jenks, the defendant in the Court below, was the proprietor of a club house in Park Place, St. James’, managed by a committee of four members, by whom the other members were elected. The subscribers were 270 in number, each paying a yearly subscription. By the rules of the club hazard and games with dice were forbidden, and points at whist were not to exceed £1. All games were to be played for ready money. It was proved by the night steward of the club that a game called baccarat was played nightly among the members. That play commenced at 4.30 p.m., and continued until 7.30, and began again at 10.30 and lasted till 3 or even 8 a.m. Baccarat is a fair game among the players, the chances being equal; it is a game both of skill and chance, but chiefly of chance, and there are no advantages to be derived except from skill or luck. It is played with three packs of cards, and banks are formed varying in amount from £50 to £1,000, the whole of which might be lost or won in about twenty minutes. It was from these banks that the profits of the proprietor, calculated to amount to at least £10,000 a year, were derived. There were no other profits made in the club except the banks; cigars and wine were sold at cost price; the kitchen was carried on at a loss; the subscriptions were barely enough to meet the club expenses. The number of members was limited to 500. The proprietor, the members of the committee, and some of the players were summoned before Sir JAMES INGHAM, at the Bow Street Police Court[333] for keeping a house for unlawful gaming, and were all convicted in penalties of varying amounts.

These convictions were affirmed in the Divisional Court, except in the case of the players. HAWKINS, J., in giving judgment, said that the real question was whether this house was kept for the purpose of unlawful gaming. There could be no question that gaming was the chief object of the club. The social arrangements were quite ancillary to the gaming purposes. The club rules against gambling, though admirable on the face of them, were really intended to conceal the real objects of the club. Even if it had been a _bonâ fide_ social club, for the double purpose of society and gaming, it would still be within the statute as a house opened and kept for unlawful gaming, provided the gaming that took place were unlawful. The Statute 17 & 18 Vict., c. 38, is not directed against a person who merely keeps a gaming house; it imposes penalties on persons who open or keep a house for the purpose of unlawful gaming, and those who assist in it.

The question then really is whether the gaming for which the house was opened was unlawful.

The magistrate put the matter on too narrow a footing in treating it solely as a question whether the games themselves were unlawful; whereas the statute is directed against unlawful gaming, and not merely against unlawful games. Gaming may be unlawful (1) by reason of the place wherein it is played; (2) by reason of the unlawfulness of the game itself. Now, cards are not unlawful, either at Common Law or by statute;[334] but it is illegal to keep a common gaming house, and if cards were played therein that gaming would be unlawful.

Two questions therefore arise: (1) Was this a common gambling house? (2) Is baccarat an unlawful game?

(1.) There could be no doubt that this was a common gaming house, and its practices were of the pernicious tendency alluded to by the different law writers and by the judges in _Reg._ v. _Rogiere_. [Sidenote: Club.] It is immaterial that the numbers of the club were limited; all gaming houses are; and if you allow a limit of 500, why not of 5,000? (2) As to the illegality of the game, the statutes, with very few exceptions, do not declare any games to be unlawful except when played by particular persons or in particular places. The earliest of the statutes was 33 Henry VIII., which prohibited any common house or alley being kept for the purpose of cards, or dicing, or any unlawful game then known or thereafter to be invented.[335] Some of the provisions of this statute, so far as they affected “games of skill,” were repealed. The test, therefore, seems to be whether a game be one purely of skill or not. Baccarat, therefore, being a game both of chance and skill, must be held to be an unlawful game.[336]

The Statutes of Anne and 18 George II., section 8, which laid down tests as to what was excessive gaming (by the former the loss or gain of £10 at one time or sitting, by the latter £10 at one time and £20 within twenty-four hours) were repealed by 8 & 9 Vict., c. 109, section 15, consequently excessive playing is no longer the test of illegality, but it may be some evidence of a house being used as a common gaming house. [Sidenote: The Committee.] His lordship held that the committee were liable for taking part in the management of the club.

[Sidenote: The players.]

The conviction against the players could not be sustained, though they might have been convicted of playing at unlawful games, but his lordship reserved this question. The words of the statute, “use the same for the purpose of unlawful gaming being carried on there,” only applies to a licensee to carry on the business.

A. L. Smith, J., delivered a judgment to the same effect, differing from Hawkins, J., only in one point, viz., as to excessiveness making a game unlawful. He considered that the dicta in Bacon and _R._ v. _Rogiere_ were still good law, although the particular statutory limits of legality had been repealed.

It would seem that if the decision in this case were pushed to its utmost limits the law might be enforced in cases where games, though technically “unlawful,” were merely made the means of innocent recreation. It is not difficult to suppose cases in which a club, though it could not possibly be called a common gaming house, might still be, according to the strict letter of the law, a house kept for unlawful gaming, if a game, not being a game exclusively of skill—say, for example, whist—were one of the objects for which a club was formed. But this is only one out of many applications of the saying, “_Summum jus, summa injuria_.” The case of gaming houses presents no greater absurdity than the law of larceny, according to which the housemaid who abstracts a pin from her mistress’s pincushion is liable to the same punishment as a clerk who robs his master’s till. In the same way any person who gets up an ordinary sweepstakes for the Derby at a club brings himself in strictness within the Lottery Acts; but probably no magistrate would convict such person as a rogue and vagabond, as he might do under the statutes.

[Sidenote: Players.]

With respect to the players either in gaming houses or at unlawful games, the penal or restrictive provisions of the statutes are neither numerous nor stringent. 12 Rich. II., c. 6, forbad servants, labourers, apprentices, and artificers to play football or dice, but this was repealed by 21 James I., c. 28. 33 Henry VIII., c. 9, s. 16, forbad artificers and labourers to play at the tables, tennis, dice or bowls out of Christmas under a penalty of 20s. This section does not appear to have been totally repealed, except by 8 & 9 Vict., c. 109, s. 1, so far as games of skill are concerned.

The above provisions seem to have been directed against _particular classes_ of persons. With respect to _persons found playing_ in gaming houses, 33 Henry VIII., c. 9, s. 12, imposed a penalty of 6s. 8d. upon them, and s. 14 empowered justices to enter such houses to arrest the persons “there haunting, resorting, and playing,” and bind them over in recognisances with or without sureties. By 2 George II., c. 88, s. 9, this jurisdiction is extended to cases proved by two credible witnesses.

As to _excessive gaming_, the penal provisions contained in 16 Car. II., c. 7, 9 Anne, c. 14, and 18 George II., c. 34, s. 8, imposing penalties for winning over a specified sum within a given time, are repealed by 8 & 9 Vict., c. 109, s. 15. In _Turpin_ v. _Jenks_,[337] it was held that the players could not be convicted for assisting in the management or business of the house (see _ante_ p. 160.)

In some cases _particular games_ have been prohibited under penalties; see _ante_ at the commencement of the chapter on Lotteries, where these provisions are summarised. It will be observed that the particular game is always specified, there is no general prohibition against games of cards or chance; and the game is in each case prohibited _as a lottery_.

[Sidenote: Lending money for gaming purposes.]

It is only necessary to mention very shortly another offence constituted by section 4 of the same Act, viz., advancing or furnishing money for the purposes of such unlawful gaming, which is visited with the same penalty of £500. Of course the money so advanced cannot be recovered (see _ante_ p. 16.)

[Sidenote: Illegal partnerships.]

With respect to partnership in gaming houses, it would seem to be clear on principle that one partner cannot sue another, nor can a principal sue an agent for an account of moneys won in an illegal adventure. The test adopted in _Simpson_ v. _Bloss_[338] seems to make this clear, viz., does the plaintiff require any aid from the illegal bargain to establish his case?

In case of the partnership in a gaming house, the contract which would have to be proved contemplates the establishment of an illegal gaming house. The case of _Sharpe_ v. _Taylor_[339] seems rather to conflict with this view. It was an action by one co-owner of a vessel against the other to recover a share of the profits earned by the vessel. The vessel was registered in the name of “A,” an American citizen, which seems to have been a breach either of the laws of the United States or of the English navigation laws, as carrying on trade between the two countries, without the real owners of the vessel being registered as such.

Lord COTTENHAM held that the plea of illegality of the adventure was no answer. Some of the dicta of his lordship’s judgment, pp. 817, 818, seem to countenance the view that a partner or an agent cannot set up illegality as a defence to the claim of a co-partner or principal, so long as the illegal part of the transaction is closed. Possibly, however, the decision can be supported on the ground that the object of the adventure was perfectly legal, viz., the importation of American produce in an English ship, though incidentally the provisions of the English navigation laws were not complied with.

It must be admitted that in _Bridger_ v. _Savage_[340] the Court quoted the dicta of Lord Cottenham with approval concerning the plea of illegality, but that case cannot be considered an authority on the point, as the transaction had relation to betting, and not to any illegal contract. In _Sykes_ v. _Beadon_[341] JESSEL, M.R. refers to Lord Cottenham’s dicta with disapproval. At p. 195, “The notion that because a transaction which is illegal is closed, that therefore a Court of Equity is to interfere in dividing the proceeds of the illegal transaction, is not only opposed to principle but to authority; to authority in the well-known case of the highwaymen, where a robbery had been committed and one of the highwaymen unsuccessfully sued the other for a division of the proceeds of the robbery.” At p. 196: “It is not sufficient to say that the transaction is concluded as a reason for the interference of the Court. If that were the reason it would be lending the aid of the Court to assert the rights of the parties in carrying out and completing an illegal contract. If the contract is for the purpose of smuggling, that is an illegal contract, and the Court cannot maintain it, and the Court will not lend its aid to it at all. In my own practice a case occurred in which one of the partners in a gaming house sued the other partner for an account of profits. It did not come on for hearing, because the plaintiff thought better of it, and I am satisfied the bill could not have been maintained; still the assertion of the bill was that the gaming house had been closed, and the plaintiff asked for an account on that footing.”

The dicta of the Master of the Rolls have the support of a judgment of Lord DENMAN in _Mortimer_ v. _MacCallan_,[342] where _Simpson_ v. _Bloss_ was quoted with approval. “This was in fact a partnership in the profits of an illegal adventure; if the plaintiff had received the whole the defendant could not have recovered his share.”

[Sidenote: Illegality cannot be set up by third party.]

At the same time a person who has received money payable under an illegal contract, not himself being a party to the contract, cannot plead the illegality. _Tennant_ v. _Elliott_[343] and _Russell_ v. _Farmer_[344] were both cases of this kind. This was the view taken of them by Jessel, M. R., in _Sykes_ v. _Beadon_,[345] and by Crampton, J., in _Nicholson_ v. _Gooch_.[346] Therefore if the partners in a gaming house kept a banking account, it is clear that the banker could be sued for the money.

[Sidenote: Agent or Manager.]

The same, it is submitted, applies to the case of an agent or manager of such an establishment: he certainly could not sue his principal for reimbursement or salary, _Thacker_ v. _Hardy_,[347] so it is difficult to see why the principal should have a right to an account against his agent for profits. Nearly all cases where _Sharp_ v. _Taylor_ has been approved the real question did not arise, as they were in many cases like _Johnson_ v. _Lansley_,[348] adventures in betting transactions which are not illegal: this matter is dealt with _post_ p. 191.

[Sidenote: Cheating at play.]

Another offence besides keeping a gaming house dealt with by this statute is cheating at play. By section 17, “Every person who shall by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, 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, or pastime, 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, &c., by a false pretence, and punished accordingly.” In _Regina_ v. _O’Connor_[349] it was held that where persons fraudulently won from another certain property by tossing with coins, that was a “pastime” within the Act if it was not a “game.”

As to conspiracy to defraud by the means mentioned in this section, see _Regina_ v. _Hudson_.[350]

[Sidenote: Games.]

There can be no doubt that horse-racing is a “game” within the meaning of this section as it was within the Statute of Anne (_sup._ Cap. I.,