1911 Encyclopædia Britannica/Gaming and Wagering

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26211971911 Encyclopædia Britannica, Volume 11 — Gaming and WageringWilliam Feilden Craies

GAMING AND WAGERING. It is somewhat difficult exactly to define or adequately to distinguish these terms of allied meaning. The word “game” (q.v.) is applicable to most pastimes and many sports, irrespective of their lawful or unlawful character. “Gaming” is now always associated with the staking of money or money’s worth on the result of a game of pure chance, or mixed skill and chance; and “gambling” has the same meaning, with a suggestion that the stakes are excessive or the practice otherwise reprehensible, while “wager” and “wagering” are applied to money hazarded on any contingency in which the person wagering has no interest at risk other than the amount at stake. “Betting” is usually restricted to wagers on events connected with sports or games, and “lottery” applies to speculation to obtain prizes by lot or chance.

At English common law no games were unlawful and no penalties were incurred by gambling, nor by keeping gaming-houses, unless by reason of disorder they became a public nuisance. From very early times, however, the English statute law has attempted to exercise control over the sports, pastimes and amusements of the lieges. Several points of view have been taken: (1) their competition with military exercises and training; (2) their attraction to workmen and servants, as drawing them from work to play; (3) their interference with the observance of Sunday; (4) their combination with betting or gambling as causing impoverishment and dishonesty in children, servants and other unwary persons; (5) the use of fraud or deceit in connexion with them. The legislation has assumed several forms: (1) declaring certain games unlawful either absolutely or if accompanied by staking or betting money or money’s worth on the event of the game; (2) declaring the keeping of establishments for betting, gaming or lotteries illegal, or prohibiting the use of streets or public places for such purposes; (3) prohibiting the enforcement in courts of justice of gambling contracts.

The earliest English legislation against games was passed in the interests of archery and other manly sports which were believed to render the lieges more fit for service in war. A statute of Richard II. (1388) directed servants and labourers to have bows and arrows and to use them on Sundays Games, lawful and unlawful. and holidays, and to cease from playing football, quoits, dice, putting the stone, kails and other such importune games. A more drastic statute was passed in 1409 (11 Hen. IV. c. 4) and penalties were imposed in 1477 (17 Edw. IV. c. 3) on persons allowing unlawful games to be played on their premises. These acts were superseded in 1541 (33 Hen. VIII. c. 9) by a statute passed on the petition of the bowyers, fletchers (fléchiers), stringers and arrowhead makers of the realm. This act (still partly in force) is entitled an “act for maintenance of archery and debarring of unlawful games”; and it recites that, since the last statutes (of 3 & 6 Hen. VIII.) “divers and many subtil inventative and crafty persons have found and daily find many and sundry new and crafty games and plays, as logating in the fields, slide-thrift, otherwise called shove-groat, as well within the city of London as elsewhere in many other and divers parts of this realm, keeping houses, plays and alleys for the maintenance thereof, by reason whereof archery is sore decayed, and daily is like to be more minished, and divers bowyers and fletchers, for lack of work, gone and inhabit themselves in Scotland and other places out of this realm, there working and teaching their science, to the puissance of the same, to the great comfort of strangers and detriment of this realm.” Accordingly penalties are imposed on all persons keeping houses for unlawful games, and all persons resorting thereto (s. 8). The games specified are dicing, table (backgammon) or carding, or any game prohibited by any statute theretofore made or any unlawful new game then or thereafter invented or to be invented. It is further provided that “no manner of artificer or craftsman of any handicraft or occupation, husbandman, apprentice, labourer, servant at husbandry, journeyman or servant of artificer, mariners, fishermen, watermen, or any serving man, shall play at the tables, tennis, dice, cards, bowls, clash, coyting, logating or any other unlawful game out of Christmas under the pain of xxs. to be forfeit for every time; and in Christmas to play at any of the said games in their masters’ houses or in their masters’ presence; and also that no manner of person shall at any time play at any bowl or bowls in open places out of his garden or orchard” (s. 11). The social evils of gambling (impoverishment, crime, neglect of divine service) are incidentally alluded to in the preamble, but only in connexion with the main purpose of the statute—the maintenance of archery. No distinction is made between games of skill and games of chance, and no reference is made to playing for money or money’s worth. The Book of Sports of James I. (1617), republished by Charles I. (1633), was aimed at encouraging certain sports on Sundays and holidays; but with the growth of Puritanism the royal efforts failed. The Sunday Observance Act 1625 prohibits the meeting of people out of their own parishes on the Lord’s Day for any sports or pastimes whatsoever. It has been attempted to enforce this act against Sunday football. The act goes on to prohibit any bear-baiting, bull-baiting, interludes, common plays or other unlawful exercises or plays on Sunday by parishioners within their own parishes. According to Blackstone (iv. Comm. c. 13) the principal ground of complaint leading to legislation in the 18th century was “gambling in high life.” He collects the statutes made with this view, but only those still in force need have been mentioned.

The first act directed against gambling as distinct from playing games was that of 1665 (16 Car. II. c. 7) “against deceitful, disorderly and excessive gaming” which deals with games both of skill and chance at which people cheat, or play otherwise than with ready money, or lose more than £100 on credit. In 1698 (13 Will. III. c. 23) legislation was passed against lotteries, therein described as “mischievous and unlawful games.” This act was amended in 1710 (9 Anne c. 6), and in the same year was passed a statute which is the beginning of the modern legislation against gambling (9 Anne c. 19). It includes within its scope money won by “gaming or playing” at cards, &c., and money won by “betting” on the sides or hands of those who game at any of the forbidden games. But it refers to tennis and bowls as well as to games with cards and dice.

The following list of lawful games, sports and exercises is given in Oliphant on Horses, &c. (6th ed.): horse-races, steeplechases, trotting matches, coursing matches, foot-races, boat-races, regattas, rowing matches, golf, wrestling matches, cricket, tennis, fives, rackets, bowls, skittles, quoits, curling, putting the stone, football, and presumably every bona-fide variety, e.g. croquet, knurr and spell, hockey or any similar games. Cock-fighting is said to have been unlawful at common law, and that and other modes of setting animals to fight are offences against the Prevention of Cruelty to Animals Acts. The following are also lawful games: whist and other lawful games at cards, backgammon, bagatelle, billiards, chess, draughts and dominoes. But to allow persons to play for money at these games or at skittles or “skittle pool” or “puff and dart” on licensed premises is gaming within the Licensing Act 1872. The earlier acts declared unlawful the following games of skill: football, quoits, putting the stone, kails, tennis, bowls, clash or kails, or cloyshcayls, logating, half bowl, slide-thrift or shove-groat and backgammon. Backgammon and other games in 1739 played with backgammon tables were treated as lawful in that year. Horse-racing, long under restriction, being mentioned in the act of 1665 and many 18th-century acts, was fully legalized in 1840 (3 & 4 Vict. c. 35). The act of 1541, so far as it declared any game of mere skill unlawful, was repealed by the Gaming Act 1845. Billiards is legal in private houses or clubs and in public places duly licensed. The following games have been declared by the statutes or the judges to be unlawful, whether played in public or in private, unless played in a royal palace where the sovereign is residing: ace of hearts, pharaoh (faro), basset and hazard (1738), passage, and every game then invented or to be invented with dice or with any other instrument, engine or device in the nature of dice having one or more figures or numbers thereon (1739), roulet or roly-poly (1744), and all lotteries (except Art Union lotteries), rouge et noir, baccarat-banque (1884), chemin de fer (1895), and all games at cards which are not games of mere skill. The definition of unlawful game does not include whist played for a prize not subscribed to by the players, but it does include playing cards for money in licensed premises; even in the private room of the licensee or with private friends during closing hours.

The first attack on lotteries was in 1698, against lotteries “by dice, lots, cards, balls or any other numbers or figures or in any other way whatsoever.” An act of 1721 prohibited lotteries which under the name of sales distributed prizes in money, advowsons, land, jewels, &c., by lots, tickets, numbers or figures. Acts of 1722, 1733 and 1823 prohibited any sale of tickets, receipts, chances or numbers in foreign lotteries. The games of cards already referred to as unlawful were in 1738 declared to be “games or lotteries by cards or dice,” and in 1802 the definition of lottery was extended to include “little-goes and any game or lottery not authorized by parliament, drawn by dice, lots, cards, balls, or by numbers or figures or by any other way, contrivance or device whatsoever.” This wide definition reaches raffles and sweepstakes on races. The advertisement of foreign or illegal lotteries is forbidden by acts of 1836 and 1844. In 1846 art unions were exempted from the scope of the Lottery Acts. Attempts have been made to suppress the sale in England of foreign lottery tickets, but the task is difficult, as the post-office distributes the advertisements, although, under the Revenue Act 1898, the Customs treat as prohibited goods advertisements or notices as to foreign lotteries. More success has been obtained in putting down various devices by newspapers and shopkeepers to attract customers by instituting “missing word competitions” and “racing coupon competitions”; by automatic machines which give speculative chances in addition to the article obtained for the coin inserted; by distribution of prizes by lot or chance to customers; by holding sweepstakes at public-houses, by putting coins in sweetmeats to tempt street urchins by cupidity to indigestion; or by gratuitous distribution of medals giving a chance of a prize from a newspaper. An absolutely gratuitous distribution of chances seems not to be within the acts, but a commercial distribution is, even if individuals who benefit do not pay for their chance.

As already stated, the keeping of a gaming-house was at common law punishable only if a public nuisance were created. The act of 1541 imposes penalties on persons maintaining houses for unlawful games. Originally licences could be obtained for such houses, but these were abolished in 1555 (2 & 3 Phil. and Mar.). In 1698 lotteries were declared public nuisances, and in 1802 the same measure was meted out to lotteries known as little-goes. Special penalties are provided for those who set up lotteries or any unlawful game with cards or dice, &c. (1738, 1739, 1744). In 1751 inhabitants of a parish were enabled to insist on the prosecution of gaming-houses. The act of 1802 imposed severe penalties on persons publicly or privately keeping places for any lottery. This statute hits at the deliberate or habitual use of a place for the prohibited purpose, and does not touch isolated or incidental uses on a single occasion, e.g. at a bazaar or show; but under an act of 1823 the sale of lottery tickets is in itself an offence. The Gaming Act 1845 facilitates the search of suspected gaming-houses and the proof that they are such. It provides that, to prove any house to be a common gaming-house, it “shall be sufficient to show that it is kept or used for playing therein at any unlawful game, and that a bank is kept there by one or more of the players exclusively of the others, or that the chances of any game played therein are not alike favourable to all the players, including among the players the banker or other person by whom the game is managed, or against whom the other players stake, play or bet.” Gambling, it will be noticed, is still in this definition connected with some kind of game. The act also provides that proof that the gaming was for money shall not be required, and that the presence of cards, dice and other instruments of gaming shall be prima-facie evidence that the house was used as a common gaming-house. The most recent statute dealing with gaming-houses is of 1854, which provides summary remedies against the keeper and makes further provisions to facilitate conviction. It may be added that the Gaming Act 1845 makes winning money by cheating at any game or wager punishable in the same way as obtaining money by false pretences. At the present time proceedings for keeping gaming-houses in the sense in which that word is commonly understood are comparatively rare, and are usually against foreigners. The statutes hit both public and private gaming-houses (see the Park Club case, Jenks v. Turpin, 1884, 13 Q.B.D. 505, the leading case on unlawful games). The proprietor and the person who keeps the bank at an unlawful game are both within the statute: the players are not, but the act of Henry VIII. is so far alive that they can be put under recognizance not to frequent gaming-houses. Under the Licensing Act 1872 penalties are incurred by licensed victuallers who suffer any gaming or unlawful game to be played on their premises. A single instance of playing an unlawful game for money in a private house is not within the statutes (R. v. Davies, 1897, 2 Q.B. 199).

In England, so far as the general public is concerned, gaming at cards is to a large extent superseded by betting on sports and pastimes, or speculation by means of lotteries or like devices. The legislation against betting eo nomine began in 1853. In the Betting Act 1853 it is described as a kind of gaming of late sprung up to the injury and demoralization of improvident persons by the opening of places called betting houses and offices, and the receiving of money in advance by the owners or occupiers or their agents on promises to pay money on events or horse races and like contingencies. This act strikes at ready money betting as distinguished from betting on credit (“on the nod”). It was avowedly framed to hit houses open to all and sundry as distinguished from private betting clubs such as Tattersall’s. The act seeks to punish persons who keep a house, office, room or other place for the purpose (inter alia) of any person betting with persons “resorting thereto” or of receiving deposits in consideration of bets on contingencies relating to horse-races or other races, fights, games, sports or exercises. The act especially excepts persons who receive or hold prizes or stakes to be paid to the winner of a race or lawful sport, game or exercise, or to the owner of a horse engaged in a race (s. 6). Besides the penalties incurred by keeping such places, the keeper is liable to repay to depositors the sums deposited (s. 5).

By the Licensing Act 1872 penalties are incurred by licensed persons who allow their houses to be used in contravention of the Betting Act 1853. There has been a great deal of litigation as to the meaning and scope of this enactment, and a keen contest between the police and the Anti-gambling League (which has been very active in the matter) and the betting confraternity, in which much ingenuity has been shown by the votaries of sport in devising means for evading the terms of the enactment. The consequent crop of legal decisions shows a considerable divergence of judicial opinion. The House of Lords has held that the Tattersall’s enclosure or betting ring on a racecourse is not a “place” within the statute; and members of a bona-fide club who bet with each other in the club are not subject to the penalties of the act. But the word “place” has been held to include a public-house bar, an archway, a small plot of waste ground, and a bookmaker’s stand, and even a bookmaker’s big umbrella, and it is difficult to extract from the judges any clear indication of the nature of the “places” to which the act applies. The act is construed as applying only to ready-money betting, i.e. when the stake is deposited with the bookmaker, and only to places used for betting with persons physically resorting thereto; so that bets by letter, telegram or telephone do not fall within its penalties. The arm of the law has been found long enough to punish as thieves “welshers,” who receive and make off with deposits on bets which they never mean to pay if they lose. The act of 1853 makes it an offence to publish advertisements showing that a house is kept for betting. It was supplemented in 1874 by an act imposing penalties on persons advertising as to betting. But this has been read as applying to bets falling within the act of 1853, and it does not prohibit the publication of betting news or sporting tips in newspapers. A few newspapers do not publish these aids to ruin, and in some public libraries the betting news is obliterated, as it attracts crowds of undesirable readers. The act of 1853 has been to a great extent effectual against betting houses, and has driven some of them to Holland and other places. But it has been deemed expedient to legislate against betting in the streets, which has been found too attractive to the British workman.

By the Metropolitan Streets Acts 1867 any three or more persons assembled together in any part of any street in the city of London or county of London for the purpose of betting and deemed to be obstructing the street, may be arrested without warrant by a constable and fined a sum not exceeding Street betting. £5. The Vagrancy Act 1873 (36 & 37 Vict. c. 38) provides that “Every person playing or betting by way of wagering or gaming on any street, road, highway or other open and public place, or in any open place to which the public 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 gaming, at any game or pretended game of chance, shall be deemed a rogue and vagabond.” This act amended a prior act of 1868, passed to repress the practice of playing pitch and toss in the streets, which had become a public nuisance in the colliery districts. The powers of making by-laws for the peace, order and good government of their districts, possessed by municipal boroughs—and since 1888 by county councils—and extended in 1899 to the new London boroughs, have in certain cases been exercised by making by-laws forbidding any person to “frequent or use any street or other public place, on behalf either of himself or any other person, for the purpose of bookmaking, or betting, or wagering, or agreeing to bet or wager with any person, or paying, or receiving or settling bets.” This and similar by-laws have been held valid, but were found inadequate, and by the Street Betting Act 1906 (6 Edw. VII. c. 43), passed by the efforts of the late Lord Davey, it is made an offence for any person to frequent or loiter in a street or public place on behalf of himself or of any other person for the purpose of bookmaking or betting or wagering or agreeing to bet or wager or paying or receiving or settling bets. The punishment for a first offence is fine up to £10, for a second fine up to £20, and the punishment is still higher in the case of a third or subsequent offence, or where the accused while committing the offence has any betting transaction with a person under the age of sixteen. The act does not apply to ground used for a course for horse-racing or adjacent thereto on days on which races take place; but the expression public place includes a public park, garden or sea-beach, and any unenclosed ground to which the public for the time have unrestricted access, and enclosed places other than public parks or gardens to which the public have a restricted right of access with or without payment, if the owners or persons controlling the place exhibit conspicuously a notice prohibiting betting therein. A constable may arrest without warrant persons offending and seize all books, papers, cards and other articles relating to betting found in their possession, and these articles may be forfeited on conviction. Besides the above provision against betting with infants the Betting and Loans (Infants) Act 1892, passed at the instance of the late Lord Herschell, makes it a misdemeanour to send, with a view to profit, to any one known by the sender to be an infant, a document inviting him to enter into a betting or wagering transaction. The act is intended to protect lads at school and college from temptation by bookmakers.

We must now turn from the public law with respect to gaming to the treatment of bets and wagers from the point of view of their obligation on the individuals who lose them. A wager may be defined as “a promise to give money or money’s worth upon the determination or ascertainment of an Wagering. uncertain event” (Anson, Law of Contract, 11th ed., p. 206). The event may be uncertain because it has not happened or because its happening is not ascertained; but to make the bargain a wager the determination of the event must be the sole condition of the bargain. According to the view taken in England of the common law, bets or wagers were legally enforceable, subject to certain rules dictated by considerations of public policy, e.g. that they did not lead to immorality or breach of the peace, or expose a third person to ridicule.[1] The courts were constantly called upon to enforce wagers and constantly exercised their ingenuity to discover excuses for refusing. A writer on the law of contracts[2] discovers here the origin of that principle of “public policy” which plays so important a part in English law. Wagering contracts were rejected because the contingencies on which they depended tended to create interests hostile to the common weal. A bet on the life of the emperor Napoleon was declared void because it gave one of the parties an interest in keeping the king’s enemy alive, and also because it gave the other an interest in compassing his death by unlawful means. A bet as to the amount of the hop-duty was held to be against public policy, because it tended to expose the condition of the king’s revenue to all the world. A bet between two hackney coachmen, as to which of them should be selected by a gentleman for a particular journey, was void because it tended to expose the customer to their importunities. When no such subtlety could be invented, the law, however reluctantly, was compelled to enforce the fulfilment of a wager. Actions on wagers were not favoured by the judges; and though a judge could not refuse to try such an action, he could, and often did, postpone it until after the decision of more important cases.

Parliament gradually intervened to confine the common law within narrower limits, both in commercial and non-commercial wagers, and both by general and temporary enactments. An example of the latter was 7 Anne c. 16 (1710), avoiding all wagers and securities relating to the then war with France. The earliest general enactment was 16 Car. II. c. 7 (1665), prohibiting the recovery of a sum exceeding £100 lost in games or pastimes, or in betting on the sides or hands of the players, and avoiding securities for money so lost. 9 Anne c. 19 avoided securities for such wagers for any amount, even in the hands of bona-fide holders for value without notice, and enabled the loser of £10 or upwards to sue for and recover the money he had lost within three months of the loss. Contracts of insurance by way of gaming and wagering were declared void, in the case of marine risks in 1746, and in the case of other risks in 1774. It was not until 1845 that a general rule was made excluding wagers from the courts. Section 18 of the Gaming Act 1845 (passed after a parliamentary inquiry in 1844 as to gaming) enacted “that all contracts or agreements, whether by parole or in writing, by way of gaming or wagering shall be null and void, and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made; provided always that this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute, for or towards any plate, prize or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime or exercise.”

The construction put on this enactment enabled turf commission 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;[3] 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 against forms of gambling introduced by the Chinese. Under these ordinances the money paid for a lottery ticket is recoverable by law. In the Transvaal betting houses were suppressed by proclamation (No. 33) soon after the annexation. An invention known in France as the pari mutuel, and in Australia as the totalizator, is allowed to be used on race-courses in most of the states (but not in New South Wales). In Queensland, South Australia, Tasmania and Western Australia the state levies a duty on the takings of the machine. In Tasmania the balance of the money retained by the stewards of the course less the tax must be applied solely for improving the course or promoting horse-racing. In Victoria under an act of 1901 the promoters of sports may by advertisement duly posted make betting on the ground illegal.

Egypt.—By law No. 10 of 1905 all lotteries are prohibited with certain exceptions, and it is made illegal to hawk the tickets or offer them for sale or to bring illegal lotteries in any way to the notice of the public. The authorized lotteries are those for charitable purposes, e.g. those of the benevolent societies of the various foreign communities.

United States.—In the United States many of the states make gaming a penal offence when the bet is upon an election, or a horse race, or a game of hazard. Betting contracts and securities given upon a bet are often made void, and this may destroy a gaming note in the hands of an innocent purchaser for value. The subject lies outside of the province of the federal government. By the legislation of some states the loser may recover his money if he sue within a limited time, as he might have done in England under 9 Anne c. 19.

Authorities.—Brandt on Games (1872); Oliphant, Law of Horses, &c. (6th ed. by Lloyd, 1908); Schwabe on the Stock Exchange (1905); Melsheimer on the Stock Exchange (4th ed., 1905); Coldridge and Hawksford, The Law of Gambling (1895); Stutfield, Betting (3rd ed., 1901). (W. F. C.) 

  1. Leake on Contracts (4th ed.), p. 529.
  2. Pollock, Contracts (7th ed.), p. 313.
  3. Burge v. Ashby, 1900, 1 Q.B. 744.