agents to recover from their principals bets made and paid for
them. But the Gaming Act 1892 rendered null and void any
promise, express or implied, to repay to any person any sum of
money paid by him under, or in respect of, any contract or agreement
rendered null and void by the Gaming Act 1845, or to pay
any sum of money by way of commission, fee, reward, or otherwise
in respect of any such contract or agreement, or of any
services in relation thereto or in connexion therewith, and
provided that no action should be brought or maintained to
recover any such sum. By the combined effect of these two
enactments the recovery by the winner from the loser or stakeholder
of bets or of stakes on games falling within s. 18 of the
Gaming Act 1845 is absolutely barred; but persons who have
deposited money to abide the event of a wager are not debarred
from crying off and recovering their stake before the event is
decided, or even after the decision of the event and before the
stake is paid over to the winner;[1] and a man who pays a bet for a
friend, or a turf commission agent or other agent who pays a bet
for a principal, has now no legal means of recovering the money,
unless some actual deceit was used to induce him to pay in ignorance
that it was a bet. But a person who has received a bet on
account of another can still, it would seem, be compelled to pay
it over, and the business of a betting man is treated as so far
lawful that income-tax is charged on its profits, and actions
between parties in such a business for the taking of partnership
accounts have been entertained.
The effect of these enactments on speculative dealings in shares or other commodities calls for special consideration. It seems to be correct to define a wagering contract as one in which two persons, having opposite opinions touching the issue of an event (past or future), of which they are uncertain, mutually agree that on the determination of the event one shall win, and the other shall pay over a sum of money, or other stake, neither party having any other interest in the event than the sum or stake to be won or lost. This definition does not strike at contracts in “futures,” under which the contractors are bound to give or take delivery at a date fixed of commodities not in existence at the date of the contract. Nor are such contracts rendered void because they are entered into for purposes of speculation; in fact, their legality is expressly recognized by the Sale of Goods Act 1893. Contracts of insurance are void if made by way of gaming or wagering on events in which the assured has no interest present or prospective whether the matter be life or fire risks (1774) or maritime risks (Marine Insurance Act 1906). An act known as Sir John Barnard’s Act (7 Geo. II. c. 8, entitled “An act to prevent the infamous practice of stock jobbing”) prohibited contracts for liberty to accept or refuse any public stocks or securities and wagers relating to public stocks, but this act was repealed in 1860, and contracts to buy or sell stocks and shares are not now void because entered into by way of speculation and not for purposes of investment. The only limitation on such contracts is that contained in Leeman’s Act (30 & 31 Vict. c. 29) as to contracts for the sale of shares in joint-stock banking companies. But a transaction in any commodity, though in form commercial, falls within the Gaming Acts if in substance the transaction is a mere wager on the price of the commodity at a date fixed by the contract. It does not matter whether the dealing is in stocks or in cotton, nor whether it is entered into on the Stock Exchange, or on any produce exchange, or elsewhere; nor is it conclusive in favour of the validity of the bargain that it purports to bind the parties to take or deliver the article dealt in. The courts are entitled to examine into the true nature of the transaction; and where the substantial intention of the parties is merely to gamble in differences, to make what is called “a time bargain,” the fact that it is carried out by a series of contracts, regular and valid in form, will not be sufficient to exclude the application of the Gaming Acts.
In very many cases transactions with “outside stockbrokers” or “bucket shops” have been held to be mere wagers, although the contracts purported to give “put” or “call” options to demand delivery or acceptance of the stocks dealt with; and the cover deposited by the “client” has been treated as a mere security for performance of the bargain, and recoverable if sued for in time, i.e. before it is used for the purpose for which it is deposited. There was not up to 1909 any authoritative decision as to the application of the Gaming Act 1892 to transactions on the London Stock Exchange through a stockbroker who is a member of “the House”; but the same principle appears to be applicable where the facts of the particular deal clearly indicate that the intention was to make a mere time bargain, or to pay or receive differences only. The form, however, of all bargains on the Stock Exchange is calculated and intended to preclude people from setting up a gaming act defence: as each contract entitles the holder to call for delivery or acceptance of the stock named therein. In the event of the bankruptcy of a person involved in speculations, the bankruptcy officials exclude from proof against the estate all claims founded on any dealing in the nature of a wager; and on the same principle the bankrupt’s trustee cannot recover sums won by the bankrupt by gaming transactions, but unexhausted “cover” on uncompleted transactions may be recovered back.
Besides the enactments which prevent the recovery of bets or wagers by action there has also been a good deal of legislation dealing with securities given in respect of “gambling debts.” The earliest (1665) dealt with persons playing at games otherwise than for ready money and losing Gambling debts. £100 or more on credit, and not only prohibited the winner from recovering the overplus but subjected him to penalties for winning it. An act of 1710 (9 Anne c. 19) declared utterly void all notes, bills, bonds, judgments, mortgages or other securities where the consideration is for money or valuable security won by gaming at cards, stocks or other games, or by betting on the sides or hands of the gamesters, or for reimbursing money knowingly advanced for such gaming or betting. This act draws a distinction between gaming and other bets or wagers. Under this act the securities were void even in the hands of innocent transferees. In 1841 the law was altered, declaring such securities not void but made upon an “illegal” consideration. The effect of the change is to enable an innocent transferee for value, of a bill, note or cheque, to recover on a security worthless in the hands of the original taker (see s. 30 of the Bills of Exchange Act 1882), but to put on him the burden of proving that he is a bona fide holder for value. In the case of a negotiable security given for a wager not within the acts of 1710 or 1841 (e.g. a bet on a contested election), but within the act of 1845, a third person holding it would be presumed to be a holder for value and on the person prima facie liable under the security falls the burden of proving that no consideration was given for it. It has been decided after considerable divergence of judicial opinion that an action will not lie in England in favour of the drawee against the drawer of a cheque drawn at Algiers on an English bank, partly for losses at baccarat, and partly for money borrowed to continue playing the game. The ground of decision was in substance that the Gaming Acts of 1845 and 1892 as the lex fori prohibit the English courts from enforcing gaming debts wherever incurred (Moulis v. Owen, 1907, 1 K.B. 746).
Scotland.—A Scots act of 1621 c. 14 (said still to be in force) forbids playing at cards or dice in any common house of hostelry, and directs that sums over 100 marks won on any one day at carding or dicing or at wagers on horse races should be at once sent to the treasurer of the kirk session. The Lottery Acts, except that of 1698, apply to Scotland; and the Betting House Act 1853 was extended to Scotland in 1874. The Street Betting Act 1906 extends to Scotland, and gaming houses can be suppressed under the Burgh Police Act 1892, and street betting, lotteries or gaming under that of 1903.
The Scots courts refuse to try actions on wagers, as being sponsiones ludicrae, unbecoming the dignity of the courts. 9 Anne c. 19 and 5 & 6 Will. IV. c. 41 extend to Scotland, but the weight of judicial opinion is that the Gaming Act 1845 does not.
Ireland.—The British Acts against lotteries were extended to Ireland in 1780, and the general law as to gaming is the same in both countries.
British Possessions.—Certain of the earlier imperial acts are in force in British possessions, e.g. the act of 9 Anne c. 19, which is in force in Ontario subject to amendments made in 1902. In the Straits Settlements, Jamaica and British Guiana there are ordinances directed against gambling and lotteries, and particularly
- ↑ Burge v. Ashby, 1900, 1 Q.B. 744.
