Henry Strother Cautley

“ But in all such races there is a regularly established process for deciding as to the winner, and it is not likely that a man who was sued by a turf commission agent for reimbursements would be allowed to raise any question as to the correctness of the decision of the judge or the stewards of the race. In these cases, therefore, the time of the Courts is never taken up with disputes as to the event on which the bet was made—an inconvenience which in former times drove the judges to the extreme measure of putting all wager actions at the bottom of the cause list. ”

“ We have no such transaction on the Stock Exchange as wagering and gaming. The only possible approach to anything of the kind was dealing in dividends, which was always reprobated by the Committee. The accounts were never recognised if there were failures; and finding that not recognising them did not stop the practice, the Committee then made it penal to do so, but with that exception I have never known such a thing as a wager. Every £1,000 of stock which is sold on the Stock Exchange must be delivered per se or per alium. ”

“ It is also worthy of consideration that actions in which betting transactions are involved, but which come before the Courts on a question as between principal and agent, are not open to the same objection as the actions which were allowed to be brought directly on the wager itself, and which necessitated the trial of absurd and frivolous issues. The interposition of an agent occurs, of course, almost exclusively in betting on the turf; and it may be taken that actions between principal and agent with respect to wagers will in all cases be concerned with wagers on horse-races. ”

“ By section 17, 165“Every person who shall by any fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, or pastime, win from any other person to himself or any other or others any sum of money or valuable thing, shall be deemed guilty of obtaining such money, &c., by a false pretence, and punished accordingly.” ”

“ Higgs lays down the general rule that the proviso is not intended to apply to any case which is at all in the nature of a wager. But with the exception of the case of Crofton v. Colgan, they do not go far towards showing what is a subscription or contribution to a prize. It is obvious that the exact line of distinction between a wager and a prize is very difficult to draw. Diggle v. Higgs shows that a mere deposit of stakes to be awarded to the winner of a race between two persons is a wager and nothing more ”

“ In actions against the agent as in Bridges v. Savage, [146] the defence of wagering and gaming is often raised, i.e., that the person to whom the instructions were given had acted not as agent but as a party to the wager. In the former case it was raised by the principal, who was sued for indemnity; in the latter by the agent, who was called upon to account for winnings. To avoid such difficulties in future it would be wise both for persons who employ commission agents, and for the latter who execute commissions, to have the terms of their bargain definitely in writing. ”

“ The payment of a bet implies that a man has not “plunged” beyond his means, particularly where the contract cannot be enforced against him. The object of the law is to discourage excessive gaming on credit, whereby persons might incur liabilities which their means can never enable them to meet.
There is yet another alternative course, which is summed up in the attitude which our law, in its present condition, assumes towards betting. In technical language, it declares wager-contracts void without making them illegal ”

“ Charles, J., held that the defendant having entered into an agency agreement, and from time to time rendered accounts to the plaintiff, showing bets to have been made and moneys received or paid on his behalf, was estopped from denying the truth of his representations.
It must, however, be admitted, for it is common knowledge, that the documents passing between the supposed principal and agent do not represent the real facts. In a majority of such cases the agent is a myth; he is in reality a bookmaker making a book with his different clients, that is if his clientèle is sufficiently large. ”

“ It is not difficult to suppose cases in which a club, though it could not possibly be called a common gaming house, might still be, according to the strict letter of the law, a house kept for unlawful gaming, if a game, not being a game exclusively of skill—say, for example, whist—were one of the objects for which a club was formed. ”

“ That where as between principal and jobber the contract be a wager, the contract between principal and broker to carry out the main contract is not one of wagering, but gives rise to an implied contract right of indemnity. ”

“ Stakeholder cannot sue for stakes. As the stakeholder is merely the agent for the depositors, he cannot maintain an action for the stakes. Thus, in Charlton v. Hill [169] the Clerk of the Course of a race meeting, who was sued by the plaintiff for the stakes won by him in one race, attempted to set off against that claim a sum due from plaintiff in respect of the stakes of another race. Held, that he could not do so as no action could have been maintained by the defendant seeing that the plaintiff could at any time recover the stakes back again.
Competitors can choose their own stakeholder. ”

“ At p. 671 it is stated: “Contracts on the Stock Exchange are never for payment or receipt of differences. All contracts, &c., are real transactions for cash or for a day named, contemplating the actual transfer or delivery ... and which transfer or delivery can only be rendered unnecessary by a new and equally real bargain on the one part to accept and pay for on the same day, and on the other part to transfer or deliver an equivalent amount of the same stock.” ”

“ The contracts themselves are the subject matter of another statute passed a few years afterwards, which by a broad and sweeping enactment, very little in the style of English statute law, makes all wagers, of any sort whatever, not illegal, but void and unenforceable. It seems an anomaly that while all bets of themselves are simply void, yet when once a cheque is given in discharge or payment thereof, we are compelled to distinguish between bets on games and bets not on games ”

“ That the employment of an agent to make bets in a betting market implies an authority to bet according to the rules and usages of such market, and that the Court would look at the Rules of Betting or other document proved to regulate such transactions. (2) That in all bets the question whether a horse is the winner or the loser is impliedly to be determined by the Rules and Conditions under which the particular race is run. ”

“ That would not infringe the statute as a gaming contract, for the principal might at any time elect to take the stock and hold it as an investment ... also the broker might be unable to sell, if, for instance he had bought shares in an insolvent bank. There is no wagering in a transaction of that kind—the broker has no interest in the stock—it does not matter to him whether the market rises or falls; but when a transaction comes within the statute against gambling and wagering, the result of it does affect both parties. ”

“ Town Council of Sheffield, [86] a wager is made “a thing of a neutral character; not to be encouraged, but not to be absolutely forbidden; it leaves an ordinary betting debt a mere debt of honour, depriving it of legal obligation, but not making it illegal.” The wording of the statute seems moreover to be framed so as to cover the case which arose in Pugh v. Jenkins, [87] where the parties made a bet on a race which had already been run, but the event was unknown to either, and it was held that the earlier statutes applied only to wagers before or at the time the gaming was going on. ”

“ With respect to the authority of the judge to declare the winner, the conditions upon which it is exercisable must be strictly observed, and the same in the case of the arbitrators or umpires of other kinds of races. In the head note to Carr v. Martinson [202] it is stated the power of the judge of a horse-race to award the stakes to a winner does not arise until the race has been run! This extraordinary point arose in the following way: the parties agreed on a race between their respective horses, naming both a starter and a judge, and fixing a particular hour on a certain day. ”

“ GAMING HOUSES. In Bacon’s Abridgment (title “Gaming”) it is stated “that by the Common Law the playing at cards, dice, etc., when innocently practised, and as a recreation the better to fit a person for business, is not at all unlawful; yet if a person be guilty of cheating, as by playing with false cards, dice, &c., he may be indicted for it at Common Law and fined and imprisoned. So, also a common player at hazard and using false dice may be indicted for it at Common Law and set in the pillory. An information against a person using the game of cock-fighting may be at Common Law. ”

“ Both parties may hope or intend to secure a difference in their favour, the one by re-purchasing, the other by a resale. Each party may suppose that the other may be willing at any time to close the bargain and settle by payment of differences, yet the bargain as stated in this simple way is in no sense a wager. The real test seems to be, what is the primary bargain between the two parties, to ascertain whether each of the parties could be called upon by the other in any contingency, under the terms of the contract, to deliver, or to take delivery and make payment. ”

“ Such a transaction seems something like a loan of money on the security of stock, the amount of the loan being by the payment of the differences from time to time kept just equal to the market price of the security.
“Taking in” distinguished from loans. The “taking in” of stock by way of continuation must be distinguished from a mere loan or deposit of stock. In the former case it is, pro tempore, an absolute sale of the stock to the jobber—the property passes to him—he can deal with it as his own. ”

“ An important distinction was drawn in the case of Applegarth v. Colley, [110] between stakes contributed by the competitors (which were then irrecoverable under certain circumstances) and a “sum added” by a third party as part of the prize to the winner. The latter it was held could be recovered by the winner. A race for a prize given by a third party seems to lack one of the elements of a wager suggested above, viz., that “one must win and the other must lose;” for while one party might be said to win the prize, the other cannot be said to lose it. ”

“ Building societies distinguished. The Master of the Rolls without deciding the point finally, said (p. 185) , “I have grave doubts whether this association is not illegal, as being within the Lottery Acts. Building societies are in a different position—they are loan societies. In an association such as this, it is not a case of loans to be returned, but of subscriptions to be divided. The subscriptions are to be divided among the subscribers by drawings by lot, and the prize is a bond with a bonus.” ”

“ It seems however in a lottery to be the same as in the case of a wager, a depositor cannot sue the stakeholder without previously giving notice to him that his authority to pay the money over to the winner is determined. ”

“ The Statutes of Charles II. and Anne must be studied before the effect and meaning of the Statute of William IV. can be made intelligible. But the latter statute, at any rate in its present application, deals only with cheques and securities given for betting debts, and that, too, only where the bet is made on a horse race, or some other game or pastime. Such securities it declares to be given for an illegal consideration. ”

“ If it be true, therefore, that the death of a depositor revokes the authority of the stakeholder with respect to that particular stake, |Right of executors against stakeholders.| it would seem that where a competitor in a race happens to die between the time of paying his stake or forfeit and the time when the whole is paid to the winner strictly speaking and from a legal point of view the stakeholder should repay them to his representatives, seeing that by Rule 156 of the Rules of Racing stakes and forfeits are part of the fund payable to the winner. ”

“ Blackstone (vol. iv.) who classifies gamblers as (1) those who are led into it by passion, (2) those who play from a greed of gain, (3) those who are drawn into it by their surrounding, states the legal objections to gambling as tending to promote idleness and debauchery among the lower classes and among the upper classes frequently attended with ruin and desolation.
150It is clear from this statement that the essence of illegality at Common Law was fraud and excess, and that all establishments which were kept for gaming purposes necessarily led to excess. ”

“ A “cup” is any prize not consisting of money. If awarded by some outside person it would, no doubt, be within the proviso, a prize to be awarded to the winner. But if it is obtained by subscription among the competitors it would seem to be on the same footing as a money fund made up of stakes, and the subscribers would be joint owners of aliquot shares, [197] until they have all assented to its being handed over to the winner, otherwise the statute might be evaded by the parties purchasing a chattel with the stakes. ”