Chapter XXIX: Section 3: , however, is directed against certain individuals—owners,

occupiers, and persons using the premises for the purposes mentioned—persons permitting them to be so used, and managers of the premises so used. In this case the management by the defendant was perfectly lawful. The Act only contemplates a taking a part or share in the management of an unlawful part of the business. His lordship was far from saying that no offence was committed on the grounds. There were clearly men on the grounds for both of the illegal purposes of betting mentioned in section 1. If these men went down to this place for the purpose of betting with persons resorting thereto, or even if they limited their operations to receiving money on deposit, they could be made responsible; there is ample evidence that those men used the grounds for both these purposes. Defendant did nothing but manage the lawful part of the business; and the mere knowledge that betting of an illegal character did take place in some part of the grounds, shows no offence within the statute.

Mr. Justice A. L. SMITH said that if the manager of the grounds were held liable, it would be difficult to see how any man employed to sweep the paths at Lillie Bridge could escape responsibility if betting were proved to go on there.

III. What kind of betting is within the Act?

[Sidenote: Illegal betting.]

The Act prohibits two kinds of transactions:—

(1.) Betting with persons resorting thereto;

(2.) Receiving money on deposit or ready money betting.

(1.) With respect to the kind of betting that is within the Act considerable uncertainty has always been felt owing to the lack of decisions on the subject. In the above case of _Haigh_ v. _Sheffield_ it was observed by LUSH, J., that the statute was intended to deal, not with the ordinary practice of betting or wagering, but with a more degenerate form of gambling, and one of a more demoralizing tendency. [Sidenote: Betting with persons resorting thereto.] At the same time his lordship does not explain exactly what kind of betting is affected by the statute. [Sidenote: _Oldham_ v. _Ramsden_.] A case which really does throw some light on the matter is _Oldham_ v. _Ramsden_,[385] though the grounds of the decision are not very clear. But it was there held that a club where the members habitually bet with one another is not within the Act.

It is very common to hear the question asked, why is Tattersall’s, &c., tolerated when the betting houses are suppressed? Two suggestions which have been made are worthy of notice:—

(_a._) That the Act does not apply to _bonâ fide_ clubs limited in
numbers where the members are selected in the usual way. [Sidenote:
Private clubs.] It would seem, however, that since the decision in
_Jenks_ v. _Turpin_, that a club or private house may be a common
gaming house that this distinction is not sound, and that the
suggestions in _Crockford_ v. _Maidenhead_[386] must be considered as
overrated.

(_b._) The other and most general impression is that the Act does not
apply except to ready money betting. The principal judicial dictum
which gives colour to this view is that of Mr. Justice BLACKBURN in
_Haigh_ v. _Sheffield_,[387] where he expressly leaves the question
open whether the place must not, to be within the Act, be kept for the
purpose of the particular kind of betting mentioned in the preamble to
the Act, viz., receiving money on deposit.[388] Anyhow, in this case,
as in _Bows_ v. _Fenwick_ and _Eastwood_ v. _Miller_, there was
evidence of deposits having been paid. “It may well be,” said his
lordship “that the Legislature intended to confine it to that kind of
betting, leaving it to future legislation to extend the enactment if
necessary.”

[Sidenote: Act not confined to ready money betting.]

It is, however, submitted that this is not the correct view of the matter. The Act speaks not only of receiving money on deposit but of “betting with persons resorting thereto.” The real meaning of these words is betting indiscriminately with all comers, that is to say, where in any place, house, or club one or a limited number of persons are the centre of every betting transaction that takes place, or, so to speak “hold the hat” against all the rest, that is a species of betting that the law prohibits, whether money passes at the time of making the bet or not. That this was the intention of the Act was clear from the speech of Sir Alexander Cockburn in bringing the Bill before the House of Commons.[389] [Sidenote: Tattersall’s not within the Act.] It was not, he said, intended to interfere with Tattersall’s and such like places, where persons met and _bet amongst one another_—where anyone is free to bet with anyone else.

It is remarkable that this question has never been practically dealt with in a Court of Law; nobody has ever yet tested the legality of Tattersall’s or similar clubs. There are, however, several dicta which give support to the view here suggested. Thus in _Bows_ v. _Fenwick_, L.R., 9 C.P., at p. 344, COLERIDGE, C. J., observes: “It was an ascertained spot where the appellant carried on the business of betting with all persons who might resort there for that purpose.” BRETT, J., at p. 346, says: “It was a fixed place selected and fixed upon by the appellant for persons who desired to deal with him.” In _Galloway_ v. _Maries_, 8 Q.B.D., at p. 281, GROVE, J., says: “There must be a fixed ascertained place occupied or used so far permanently that people may know that there is a person who stands in a particular spot indicated by a definite mark with whom they may bet;” and again, at p. 282: “The object of this Act was to prevent persons having fixed localities to which other persons may resort for the purpose of betting.” In _Hornsby_ v. _Raggett_, 1891 2 Q.B.D., at p. 24, SMITH, J., says: “The Act was intended to suppress the operations of those persons who keep what may be described as “banks” for the purpose of inducing other people to make bets with them.”[390] It seems a fact that in the clubs, the frequenters are all on the same footing. In the illegal houses they are divided into two classifications: (1) the persons who form the market for betting; (2) those who go there to bet with them.

A point may arise which has not yet been decided, whether the Act in speaking of betting relates only to betting on horse races, &c., or whether it also includes betting of every kind, such as betting on the price of stocks as has been pointed out in the chapter on the Stock Exchange.

[Sidenote: Bucket shops.]

Proceedings of this kind for what are called difference bargains are not infrequent in the “bucket shops”; does then the Act apply to these “bucket shops”[391] where difference bargains are the course of business?

The draftsmanship of the Act is curious, it speaks of two illegal purposes, thereby following the preamble: (1) betting with persons resorting thereto seemingly without limiting the betting to horse races; (2) receiving money on deposit on the event of horse races, &c., so that as far as ready money betting goes, the “bucket shops” are clearly not within the Act. It is submitted that in speaking of betting the Act cannot be held to limit it to betting on horse races, and that such limitation is confined to the case dealt with in the second clause of the section, viz., the ready money bet.

[Sidenote: Betting by correspondence.]

A further point arises on the wording of this very difficult statute within the first clause of the section, that is betting generally as distinguished from ready money betting. The words of the Act require that there should be: (_a_) Persons who resort thereto; (_b_) definite betting with them by the persons specified. Suppose, then, a bookmaker does business with his clients by correspondence, does he come within the Act? Can his correspondents be said to resort thereto? And the same question arises where betting is done by telephone. It is submitted that these persons cannot be said to resort thereto. To hold that they do, would be an artificial and strained construction of the Act. This clause of the section differs from the second relating to ready money betting, in which “persons resorting thereto” are not mentioned. It might well be that the framers of the Act desired, to put down, not betting generally, but establishments which form the nucleus of a crowd of disorderly persons, which in the language of Bacon’s Abridgment “cannot be but very inconvenient to the neighbourhood.” The prohibitions against ready money betting are more general as being productive of a greater amount of criminality amongst clerks and servants.

The true view seems to be that the bet must be made with the person as and when he physically resorts thereto. If a man sent his agent to the place no doubt the agent would resort thereto, but it would seem that this would not bring the bookmaker within the Act, unless the agent were authorized to conclude the bet. In the case of betting by correspondence, not only does the man send no agent there, but the bet is certainly not made on the premises.

It must be admitted that this view makes the prohibitions of the Betting House Act far less stringent than is usually supposed, and this is the more especially so since the decision in _Davis_ v. _Stephenson_ (this is dealt with _post_ in the observations as to ready money betting) which seems to make it clear that by opening a banking account where persons can deposit money in respect of bets which they contemplate making, a bookmaker would not infringe the second clause of the section. _Post_ p. 190.

Perhaps the greater part of the betting in this country is carried on through commission agents who belong to Tattersall’s or some other betting club, [Sidenote: Commission agents not within the Act.] and do commissions thereat for their clients. This transaction clearly does not come within the Act (that is, unless, as we shall show afterwards, he takes money in advance) as he does not bet himself. Of course, if he were really the principal, and did all the bets himself, he would be liable.

[Sidenote: Coupons.]

A question has more than once been suggested to the writer as to the legality of a practice now very common among the sporting papers of attaching coupons on which are to be written, say, the winners of any three coming events, a prize being awarded to the successful person or persons. Is this a bet? If it is, then probably the proprietors of the newspapers would lay themselves open to be prosecuted for keeping an office for the purpose of betting with persons resorting thereto. But it is submitted that such a transaction is not in the nature of a bet at all. Even supposing the purchaser of a newspaper get it at the office, the 1d. or 2d. he pays is to buy the paper. Of course the case might be different if a separate deposit was required when the coupon is sent in. But the difficulty is all the greater when, as is generally the case, the paper has been purchased at an ordinary shop. There is then no privity between the purchaser and the newspaper proprietors. We have above (p. 32 _et seq._) suggested some of the characteristics of a wager: the coupon system does not seem to contain any of them.

The above observations have, since they were written, been confirmed by the decision of the Divisional Court in _Caminada_ v. _Hulton_[392]. The scheme in this case was of the ordinary character. The defendant published “The Sporting Chronicle Handicap Book” as a weekly companion to a daily paper, “The Sporting Chronicle.” Attached to the book, which was a sort of racing guide, was a coupon, with the titles of six races printed on it. The book was sold for 1d., and the purchaser of the book was invited to fill up the coupon with the names of the horses he might select as the winners of the six races; and prizes of various gradations were offered to the competitors, according to the number of winners each might select. It was held that the 1d. being paid for the purchase of the book, the scheme was not a wager, but only a device for increasing the sale: nor was it a deposit of money on an agreement specified in section 3 of the Betting House Act.

This case leaves the point suggested above untouched, viz., whether if a separate payment were made in respect of each coupon sent in, it would not amount to a wager.

Competitions have in modern times assumed very various forms; but the racing coupon is the only one which has evoked a decision. Each must be judged according to its own scheme. Apart from fraud, the objections which could be taken to them would be as infringements of the Betting House Act in the Lottery Acts. In the earlier parts of this work some tests and criteria of a “wager” and a “lottery” are suggested. (See the Index under these headings.)

[Sidenote: Ready money betting.]

(2.) Receiving money on deposit. A house, &c., kept for this purpose is also illegal. No doubt all the cases cited above as to evidence of a house being kept for the purpose of the offence first mentioned in this section and of permitting it to be so used are applicable to this case. The following case shows that a man brings himself within the statute by doing business in this way by correspondence, even though he profess to be a mere agent for doing commissions. It has already been suggested that betting by correspondence is not within the first clause of the section.

In _Wright_ v. _Clarke_[393] Wright was charged under section 3 of 16 & 17 Vict., c. 119, with keeping a house and office near Covent Garden for the purpose of receiving money on an undertaking to pay money on events and contingencies relative to horse races. Advertisements were inserted in the different papers to the effect that he would execute commissions on all races at the best prices, instructions to be sent to his offices in York Street; that he did not lay bets himself, but only acted as agent in the matter. “The money sent for investment will be taken into the best market, and laid out the best advantage for clients. All communications must be sent through post, and the replies can only be forwarded in the same manner. Commissions executed to any amount on receipt of the cash. All bets paid the day after the race (less 5 per cent. on winnings), provided the vouchers are sent at the same time.” Two or three police officers acting on instructions, gave instructions to Wright by post to back certain horses for some of the Ascot races, enclosing P.O.O.’s, and they received letters of acknowledgment from Wright, saying that their instructions had been carried out. In one case an officer received a cheque from Wright for winnings minus 5 per cent., Wright’s commission. A warrant being issued under section 11 of the Act, Wright and some clerks engaged in filling up papers and forms relating to his betting business were arrested. A large number of documents and books relating to betting were found upon the premises, and also 56,000 vouchers. There was in one of Wright’s books an entry of his transaction with one of the officers. Being convicted and fined £100, a special case was stated for the Court of Queen’s Bench.

For Wright it was contended: (1.) That he was not within the Act, seeing that persons did not resort to his office, the whole was conducted by correspondence; besides, he was simply an agent and not a principal. (2.) That the vouchers did not amount to an agreement to pay money on a bet, but only contained advice as to the mode of applying for payment. (3.) If they did amount to such an agreement the money deposited with him by P.O.O. was not the consideration for such agreement. The real consideration was the 5 per cent. of the winnings retained. (4.) That Wright could not be said to have used the house for the purpose of receiving the P.O.O.’s.

The Court held that Wright came within the second part of section 1. The office was kept open and there was a promise, express or implied, to pay the money in the event of a horse race, though nobody entered the house. There could be no doubt Wright was the principal and intended to be responsible for the payment of the bet. An implied promise would suffice to bring the case within the statute.

This case seems to make it clear that the receipt of money by way of deposit on bets even through the post is an unlawful purpose within the second clause of sections 1 and 3, which do not speak of receiving money from “persons resorting thereto.” It has already been suggested that these words in the first clause seem to exclude making bets on credit through the post. In the judgment of HAWKINS, J., in _Reg._ v. _Preedie_ (see note, p. 174), his lordship says: “That the Act is directed against carrying on the business of betting with, or receiving deposits from, persons resorting thereto.” It is with the greatest deference suggested, and for the reasons given above, that this is not quite accurate.

[Sidenote: Taking cover in “bucket shops.”]

It has been suggested above that “bucket shops” would be illegal under clause 1 of sections 1 and 3, if difference bargains which have been held to be wager contracts, are the course of business carried on therein. But as far as the second clause goes relating to ready money betting, it is clear that the bucket shops are not included, seeing that these clauses are confined to ready money betting on horse races, &c., consequently they would not be liable under these clauses for taking securities from their clients to secure the differences they may have to pay, commonly known as “cover.”

[Sidenote: Receipt must be in house.]

It has been held that in order to constitute a receipt within sections 1 and 3, the actual receipt of the money in respect of the bets must be in the house alleged to be used for the unlawful purpose. In _Davis_ v. _Stephenson_[394] the bookmaker used an alley, not part of the licensed premises, of which the defendant was landlord, as a resort for persons to bet with him, where he received sums of money on deposit.

This money was afterwards taken into the defendant’s house, and the house was it appeared used for the purpose of settling. It was contended in support of the conviction that this amounted to a continuous receipt by the bookmaker, and that the defendant permitted the use of the tavern as a betting office. [Sidenote: Banker not liable.] The Court held that the actual receipt must be within the place alleged to be so used. It is clear from this case that a banker could without liability open an account for the receipt of deposits paid in by a bookmakers’ customers in respect of bets which they contemplated making with the bookmaker elsewhere, seeing that the bank would not be used for an illegal betting purpose by any of the persons specified. The effect of this decision on the latitude allowed to bookmakers has been pointed out above, p. 185.

[Sidenote: Section 4.]