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Wagering in United Kingdom

Gaming, Wagering and Gambling

From the Encyclopedia Britannica (1911):

It is somewhat difficult exactly to define or adequately to distinguish these terms of allied meaning. The word “game” 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.

Games, lawful and unlawful.

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 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 (_flechiers_), 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 L100 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.

Street betting.

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 L5. 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 L10, for a second fine up to L20, 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.

Wagering.

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 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 L100 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 L10 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.

Gambling debts.

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 L100 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.)

FOOTNOTES:

[1] Leake on _Contracts_ (4th ed.), p. 529.

[2] Pollock, _Contracts_ (7th ed.), p. 313.

[3] _Burge_ v. _Ashby_, 1900, 1 Q.B. 744.



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  • Article Name: Wagering
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  • Description: Gaming, Wagering and Gambling From the Encyclopedia Britannica (1911): It is somewhat difficult exactly to define or [...]

This entry was last updated: November 4, 2020

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