Chapter XXXV: Section 12: confers the same powers on the Commissioners of Police in the

Metropolis, on the report in writing of any superintendent, to authorise such superintendent, with other constables, to enter suspected betting houses, as is contained in the Gaming House Act; to take into custody all persons found therein,[409] and to seize all lists, cards, or other documents relating to racing or betting.

The Act also contains provisions similar to those of the Gaming House Act, with respect to appeals to Quarter Sessions, certiorari, and limitations of action (see above, p. 199).

GAMING IN LICENSED PREMISES.

[Sidenote: Gaming.]

By 35 and 36 Vict., c 94, if any licensed person (1) suffers any gaming or any unlawful game to be carried on on his premises, (2) opens, uses, or suffers his house to be opened or used in contravention of 16 & 17 Vict., c. 119, he is liable for the first offence to a penalty of £10, and for every subsequent offence to a penalty of £20; the conviction to be endorsed on such person’s license.

[Sidenote: I. Gaming. Knowledge of owner necessary.]

The following cases go to show how far actual or constructive knowledge on the part of the owner of the premises is necessary.

In _Redgate_ v. _Haynes_,[410] defendant was the landlady of an hotel at Epsom; witnesses proved that three men and a horse-trainer, a jockey, and an inhabitant of Newmarket, were playing cards for money in the sitting room from 11 p.m. The defendant retired to bed, leaving the hall porter in charge of the house. The latter closed the door and retired to his chair in the parlour, at the farthest end of the house. The usual place for such chair was in the hall, and it was his duty to wait upon his guests in the sitting room. From the Judgment delivered the following rules may be extracted: (1) The defendant would not be liable merely for the fact of gaming unless she knew of it or connived at it. (2) In her absence she was responsible for the conduct of those she left in charge. (3) The fact of the porter moving his chair out of the way was some evidence that he suffered or connived at what was going on, but the judges declined to say whether they would have drawn the same conclusion.

In _Bosley_ v. _Davies_[411] there was evidence that persons were playing at cards in the house, but none that the manageress or the attendants knew that gaming was on. One of the players deposed that all the brandies and sodas were served before the playing commenced. The case was sent back to the magistrates with an intimation of opinion from the Court that some knowledge, actual or constructive, or connivance on the part of the owner was necessary.

In _Somerset_ v. _Hart_,[412] defendant was keeper of licensed premises. On market day when the inn was very full, two men began gambling with a mug and three nuts. It was proved that the potman knew of gambling, but took no steps to prevent it, nor did he communicate it to the landlord, who was engaged serving customers at the bar. COLERIDGE, C.J., in giving judgment, distinguished the case of _Redgate_ v. _Haynes_,[413] on the ground that there the magistrates thought there was evidence of connivance. _Mullins_ v. _Collins_ was a case of serving a constable with liquor while on duty; but there the liquor was served by a woman who was probably defendant’s wife, to whom the management of the business had been entrusted. Here the magistrates find that there was no evidence that defendant had actual knowledge of the gaming, or that the potman communicated it to him, or that he wilfully shut his eyes to what was going on. All the cases show that there must be something in the nature of connivance. See, too, _ante_ p. 175.

The case of _Bond_ v. _Evans_,[414] carried the matter somewhat further. The defendant, a licensed victualler, had a skittle alley attached to his premises, the management of which he entrusted to a servant. It was proved that cards were played for money in the alley, and that the servant was cognisant of the fact, though the defendant was not. It was held that, the landlord of licensed premises “suffered” gaming to be carried on when there was connivance at it, either on his own part or on the part of any servant in charge of that part of the house where gaming went on.

[Sidenote: What is gaming within the Act?]

To be within the act there must be either gaming for money or playing some unlawful game. Thus in _Reg._ v. _Ashton_[415] (a case within 9 Geo. IV., c. 61, section 21) it was held that playing at dominoes, but not for money, was lawful, dominoes not being an unlawful game.

In _Danford_ v. _Taylor_,[416] the game of ten-pins, the losers standing beer all round, was held to be within the Act.

In _Bew_ v. _Harston_,[417] a licensed person allowed to be played on his premises a game called “puff and dart,” the object of which is to hit a mark on a target with a small dart blown through a tube. The players each contributed 2d. as entrance money, the total sum so contributed being applied to the purchase of a rabbit as a prize for the winners. _Held_ that he was rightly convicted of gaming on licensed premises. Cockburn, C.J., doubted whether the term “gaming” did not apply to games of chance alone.

Except for the doubts thus expressed in the last case, the authorities seemed to be all one way, that playing for money, even at a game exclusively of skill, is “gaming”: this view has since been adopted in _Dyson_ v. _Mason_.[418]

[Sidenote: Card playing.]

In _Patten_ v. _Rymer_[419] an innkeeper, whose license forbade him to suffer gaming on his premises, was held liable under 9 George IV., c. 61, section 21, for playing cards for money with his friends.

Although 37 & 38 Vict., c. 49, permits licensed persons to serve liquors to private friends after hours, there is nothing in that act which justifies him in allowing the friends in his house to play cards for money.[420] Section 25 of the Act of 1872, which imposes a penalty on persons found in licensed premises during prohibited hours for the purpose of being served with liquor, does not extend to cases where they are only playing cards or other games.[421]

[Sidenote: Unlawful games.]

As to what are unlawful games, see _ante_ p. 152.

[Sidenote: Money lent by publican for gaming cannot be recovered.]

In _Foot_ v. _Baker_[422] it was held that money lent by a publican for the purpose of gaming in his premises contrary to his license cannot be recovered.

[Sidenote: II. Using the house for betting.]

Reference should be made to the notes on “What is Illegal Betting” in the chapter on Betting Houses. It would seem, therefore, that there is no objection to a publican keeping a room in his house for other people to bet in, in the same way as betting is practised at the Clubs; but he must not bet with his customers himself, nor allow anyone else to use the house for the purpose of betting with all comers.

In _Sim_ v. _Page_[423] it was held that licensed victuallers are still liable to be proceeded against, under the Gaming and Betting House Acts, notwithstanding this Statute see section 59.

BETTING IN A PUBLIC PLACE.

By 5 George IV., c. 83, section 4, any person playing or betting in any street, road, highway or other open or public place, at or with any table or instrument of gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.

[Sidenote: Instruments of gaming.]

In _Watson_ v. _Martin_[424] it was held that tossing for halfpence was not within the statute. To supplement this defect in the statute, by 31 & 32 Vict., c. 52, section 3, the words “coin, card, token or other article used as an instrument or means of such wagering or gaming,” are added so as to include pitch and toss. But in _Hirst_ v. _Molesbury_[425] it was held that the latter statute did not apply to a deposit of money by a person in the hands of another, in a public place, to abide the event of a wager.

In _Tollett_ v. _Thomas_,[426] defendant was on a race course, and had a machine called a pari-mutuel. This machine had on it numbers, beside each of which were three holes, and behind these holes were figures which by a mechanical contrivance were made to shift on the turning of a key, so that any number from 0 to 999 would be exhibited behind these holes. On the top of the machine was the word “total,” and beside it were holes in which could be exhibited in similar manner figures shifting on the turn of a key. The defendant appropriated each of these numbers to designate a horse about to run in a race. Any person who wished to bet on a particular horse, deposited with the appellants half-a-crown, and received a ticket with the number of the horse. The defendants then by a turn of the key altered the figures, increasing the sum indicated alongside that number by one, and the same turn of the key increased the figure beside “total” by one.

After the race had been run, the holders of tickets with the numbers of the winning horse had divided among them all the half-crowns deposited, less 10 per cent. which defendants retained as their profit.

_Held_ (1) That this was an instrument of wagering or gaming within the Act. (2) That as the amount to be won depended on an event other than the issue of the race (_i.e._, it varied according to the number of persons who backed a particular horse), it was a game of chance. It was like a lottery, which (_semble_ at p. 514) would be a game of chance within the act.

It was left open whether a horse-race was a game of chance (but see _post_ as to games of chance).

[Sidenote: What is a public place?]

An _omnibus_[427] is a public place at any rate for some purposes.

In _Turnbull_ v. _Appleton_,[428] colliers and their families were allowed by a company to use a large field of 30 acres for recreation. Strangers were also allowed to go and play there. On one occasion defendant played pitch and toss in the field. _Held_ that this field was a place to which the public had access.

It has lately been decided that _a railway carriage_ is a public place while in the course of a journey.[429]

So, too, _a race course_. See _Tollett_ v. _Thomas_ (_ubi sup._).

[Sidenote: 36 & 37 Vict., c. 94.]

The Statute 36 & 37 Vict., c. 94, repeals the Act of 1868 and provides “that any person playing or betting, by way of wagering or gaming, in any street, road, highway or other open and public place, or in any open place to which they have or are permitted to have access, at or with any table or instrument of gaming, or any coin, card, token or other article used as an instrument or means of such wagering or gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond” within the meaning of the Act of George IV., and punished under the provisions of that Act (_i.e._, three months’ imprisonment), or may be fined 40s. for a first offence and £5 for a subsequent offence.

It would seem that this statute is wide enough to take in a case like _Doggett_ v. _Catterns_[430]—where it will be remembered a man had a table in Hyde Park for betting purposes.

[Sidenote: Games of chance.]

We have now to consider what really is comprehended in the term “game of chance” as used in this Statute. The writers are not aware that the exact term has been used in any other statute, though the converse expression, “game of skill,” is to be found in the Act of 1845. It is, however, to be found in various cases such as _Turpin_ v. _Jenks_[431] and _Dyson_ v. _Mason_[432] (see Table of Cases). In _Tollett_ v. _Thomas_ (_ubi sup._) that a pari-mutuel was an instrument of wagering on a game of chance, although the owner was not betting himself with the depositors on the ground, that the amount which each depositor could win was a matter of uncertainty, until it was finally ascertained how many in the total had backed such depositor’s horse; the result being entirely independent of his skill.

It is submitted that the true test of whether or not a game is a game of chance, including in the term a game partially of skill and partially of chance is, whether according to the rules or scheme of the game any material part of or step in the game is determined by chance. But the term “chance” must be used in a more definite and limited sense than mere uncertainty, or even the possibility of uneven luck. The idea of chance seems to be the same as that of lot, _e.g._, the dealing of cards, the throwing of dice, or the spinning of a teetotum. Uncertainty is the essence of every game even if of skill; and frequently inequality of luck is an important factor. Thus in billiards or pool every stroke is an effort of skill both as to the stroke itself and the placing of the balls for next stroke; and probably (with ordinary players) few games of skill are more influenced by luck; yet in _Dyson_ v. _Mason_, billiards was assumed on all sides to be a game of skill. Again, the design and scheme of a horse-race is a contest involving a trial of the speed and staying power of the horses, and the skill and nerve of the jockeys; though doubtless attended by uncertainties which need no enlargement. Still, what was assumed in _Dyson_ v. _Mason_ supports the view that mere uncertainty is not tantamount to chance; and if so, the question which was reserved in _Tollett_ v. _Thomas_, viz.: whether or not horse-racing was a game of chance must be answered in the negative.

[Sidenote: In Metropolis.]

30 & 31 Vict., c. 134, section 24, provides that three or more persons assembled in the streets in the Metropolis for betting purposes may be fined £5 as for an obstruction.