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XVII. How the penalties under the game laws are re

coverable.

By 8 Geo. 1. C. 19, Where any perfon fhall, for any of fence against any law now in being ss, for preservation of the game, be liable to pay any pecuniary pena ty upon conviction before any justice of peace, it ihais be lawful for any other person, ei:her to proceed to recover the said pes nalty by information before a justice, or to sue for the same in any court of record. . 1.

And by 2 Gco. 3. c. 19, It shall be lawful for such pere fon, to sue for and recover the whole penalty for his own use, by action of debt, or on the case, bill, plaint, or information, in any court of record at Weiminier, and if he recovers, he shall have double costs; and no part of the penalty, recovered in any such suit, shall be paid to the use of the poor. f. 5.

But no such action shall be brought but within fix [lunar] months after the matter is done. /. 6.

And no ofiender shall be prosecuted for the same offence, both by the way prescribed by this law, and by the way prescribed by any of the former laws; and in case of

any

se. cond prosecution, the person so doubly prosecuted may plead in his defence the former prosecution pending, or the conviction or judgment thereupon. 8 Gco. 1. c. 19.

55. The penalties under the acts subsequent to this act of 8 Geo i, are therefore recoverable, as those acls particularly direct.

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Gaming and Gaming-houses, Gaming not an IT seems that by the common law, the playing at cards,

dice, and the like, when practised innocently and as a recreation, the better to fit a person for bufiners, is not at all unlawful', nor punishable as any offence whatsoever. 2 Vent. 175. 5 Mod. 13. Salk. 100, pl. 10.

But

offence at common law.

s. N ither is the laying of Wagers in general illegal; for indifferent wagers pon indifferent matters, are allowed by the law of this country, if they do not fall within the restraint of any particular act of parliament: and the amount of any such wagers may consequently be recovered in an a&ion brought for the same, laying it by way of noutual prontises; but the sube je matter of the wager itself may in many intances render such wagers illegal, and prevent their being recovered, as if they be against public policy; against decency; or tend to affect the particular interests of individuais

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But although gaming is not malum in fe, and may be lawful, yet if a person be guilty of cheating, as by playing with false cards, dice, and the like, he may be indicted for it at common law, and fined and imprisoned, according to the circumstances of the cafe and heinousnets of the of fence. 2 Bacon's Abr. 620.

Also all common gaming-houses are nuisances in the eye of the law, not only because they are great temptations to idleness, but also because they are apt to draw together great numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood. 1 Hawk. c. 75. 8. 6.

And as the practice of gaming among the inferior sort of But restrained people is productive of the most destructive and pernicious by statutes. consequences, by its evident tendency to promote public idleness, theft, and debauchery, several statutes have been made for restraining this vice.

And by 33 Hen. 8. c. 9. No person shall for his gain, Gaming-houses lucre, or living, keep any common house, alley, or place of prohibited. bowling, coiting, cloysh, cayls, half, bowl, tennis, dicing, tables, or carding, or any other game prohibited by statute heretofore made”, or any unlawful new game; upon pain to forfeit for every day 40s. f. II.

It was resolved upon this clause, in the third year of Jac. 1. That if the guests in an inn or town call for a pair of dice or tables, and for their recreation play with them, or if any neighbours play at bowls for their recreation, or the like these are not within the statute ; for although the games be used in an inn, tavern, or other houfe; yet if the house be not kept for gaming, lucre, or gain, but they play only for recreation, and for no gain to the owner of the house, this is not within the statute, nor is such person that plays in

See the cases of Da Copia v. Jones, Cowper's Res. 729. and Good v. Elliot,
3 Term Rep 693.

But in such wagers there must also be a mutual liability to pay; for in the
case of Bloxton v. Pye, where an adion was brought on a bet of fourteen
guineas to eight on a horse-race; the court held that as the plaintiff might,
under 9 Ann. 6. 14.8.2. (lce p. 764, infra), have refused to pay the fourteen
guineas, if he bad lojt, there was no mutuality in the wager, and therefore he
Thould not recover the eight guincas of the defendant. 2 Wilf. 309.-The
like was also determined in Clayton v. Fennings, reported in Bieck. Re.. 706.
on a bet of ten guineas to five on a similar race.

2. “The other games prohibited by former statutes, which are only repea'.
ed as to the penalties, are foot-ball and casting of the stone, and other such

importune games, prohibited to be ufed by ferva' ts of huibandry labour-
'ers, and servants of artificers and victualers, by 12 . 2. c. 6. hani ball

by the same persons, by 11 Hen. 4. c. 4 ; hand in and hand out, and quik-
• borde, by !7 Edrv. 4.c. 3; playing at tables, but only for meat and drink,

by apprentices and servants of husbandry, labourers, and servants artificers,
by !! iten. 7. c. 2; and all playing at tables by chc Lame persons, by
19 Hen. 7. 6. 12.'

8

such

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such house that is not kept for lucre or gain, within the

penalty of the law. Dalton. c. 46. Haunting gam- Every person using any of the faid houses, &c. and there ing houses.

playing, ihall forfeit for every time 6s. 8d. f. 12.

And it shall be lawful to all justices of peace, mayors, Power of jullices. sheriffs, bailiffs, and other head officers, within every city,

town, or borough, to enter into all such houses and places where such games shall be suspected to be used; and as well the keepers of the same, as also the persons there resorting and playing, to arrest and imprison ; unto such times as the keepers of the said games have found fureties to the king's use, no longer to use, keep, or occupy such house game, or place; and also that the persons there found be in like cafe bound no more to play, haunt, or exercife from thenceforth, in, at, or to any the said places, or at any of the faid games. f. 14.

And the mayors, sheriffs, bailiffs, conftables, and other head officers within every city, borough, or town, shall make search weekly, or at furthest once every month, where any such houses, plays, or places, shall be suspected to be kept; and if they do not make search once every month, if the case so require, according to this act, and do not execute the same in all things, every such mayor, &c. fhall forfeit for every month 40s. f. 15.

And no artificer, handicraftsman, husbandman, apprentice, labourer, servant at husbandry, journeyman, or servant of artificer, mariner, fishermen, watermen, or any servingman, shall play at tables, tennis, dice, cards, bowls, cloysh, coiting, logating, or any other unlawful game, out of Chrismas, under pain of 20s. and in Christmas to play at the faid games in their master's houses, or in their master's presence ; and no person shall play at bowls in open places out of his garden or orchard, under pain to forfeit 6s. 8d. . 16.

But it shall be lawful for every master to licence his servants to play at cards, dice, or tables, with their master, or with any other gentleman repairing to their master in his house, or in his presence. f. 22.

It shall be lawful to every nobleman, and other having lands or other yearly profit for term of life in his own right, or in his wife's right, to the yearly value of 100l. to licence his servants or family to play within the precinct of their houses at cards, dice, tables, bowls, or tennis, as well amongst themselves as others repairing to the fame houses. 8. 23.

And all justices of peace, mayors, and all other head of ficers, finding or knowing any person using unlawful games, shall have power to commit such offender to ward, until he be bound to the king's use, in, such sum as they think reasonable, that they shall not from thenceforth use fuch unlawful games. f. 16.

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And by 2 Geo. 2. c. 28, Where it shall be proved on the oath of two witnefles, before any justice of peace, as well as where such justice shall find upon his own view, that any person hath used any unlawful game, contrary to the statute 33 Hen. 8. c. 9. the justice shall have power to commit such cffender to prison, unless he enter into recognizance with fureties, or without, at the discretion of the justice, that he shall not from thenceforth play at such unlawful games. S.9.

Where any such forfeitures shall be within any franchise or leet, the lord shall have the one moiety, and the other moiety to any of the kings subjects that will sue for the same in any of the king's courts; and where such forfeiture shall be out of any franchise or leet, the moiety of such forfeiture shall be to the king, and the other moiety to any the king's subjects that will lue, &c. 33 Hen. 8. c. 9. f. 18.

But by 31 Eliz. c. 5, All suits to be pursued upon any statute (then in force) for using any unlawful game, shall be sued and prosecuted, or otherwise heard and determined in the general quarter sessions or assizes of the county where the offence shall be committed, or in the leet, within which it shall happen, and not in anywise out of the county. 1.7

This statute of 33 Hen. 8. seems to have been greatly misapprehended by some justices of the peace, insomuch that they have been induced to consider the offenders as idle and disorderly perfons ; this is however not warrantable, as appears from the fole lowing cale :

The K. v. Clarke, E. 14 Geo. 3. this was a conviction upon 33 Hen. 8. c. 9. f. '16, in effect as follows, “ Be it « remembered, that on, &c. S P and J B, of, &c. came be« fore me W C.one, &c. and gave me to understand and “ be informed that T C of, &c. labourer, on the 16th of Aug. 1773, did use and play at a certain unlawful game « with bowls and pins, called bowl-rushing, with divers u liege subjects of our faid lord the king, and did then and “there receive divers sums of money of the said subjects, “playing at the said game, against the form of the statute, &c. and against the peace, &c. and pray that the said “TC may be convicted of the said offence: whereupon « afterwards, on, &c. the said I C being apprehended and “ brought before me, &c. to answer to the said charge, &c. “ the said T C is asked by me if he can say any thing for " himself, why he the said T C should not be convicted of “ the premises above charged upon him, &c. and thereupon “ the said TC of his own accord fully acknowledges the

premises, &c. to be true as charged, and does not thew to t' me any sufficient cause why he should not be convicted

" thereof.

“ thereof. Whereupon all and singular the premises, &c. “ being confidered and due deliberation being thereunto had, “I do adjudge and determine that the said T C is guilty of " the premises &c. and that the said T C is therefore an idle " and disorderly perfon, and is also therefore a rogue and vagabond within the true intent and meaning of the statutes in “ that cafe-made and provided. And the said TC is ac“cordingly by me convicted of the offence charged upon “ him in and by the said information, and of being an idle and disorderly perfon, and a rogue and vagabond, in form " aforesaid : and I do hereby adjudge and order that the “ faid T C be therefore committed to the house of correption, “ there to remain for the space of one month, being a less “ time than until the next general quarter sessions of the

peace, or until the laid T C thall find fureties to be bound “in recognizance to appear before the next quarter sessions, “ and for his good behaviour in the mean time.” The court at first quashed this conviction, on an objection, that it was not alledged in the information, that the playing at bowls was out of the defendant's own orchard", and it is only unlawful sub modo. Afterwards in the same term lord Mansfield said, a doubt had arifen, “Whether, as by another part of the sixteenth section of 33 Hen. 8. it is made unlawful for a labourer to play at any time out of Christmas, the conviction was not good, as the defendant was stated to be a labourer, and the playing laid on the 16th of Auguft" but his lordship observed, " the punishment appeared to be under the vagrant act, 17 Geo.2. c. 5. /.1. therefore delired it might be fpoken to again upon this point, and alfo whether it was a good adjudication under this latter ftatute." Afterwards Mr. J. Arlon (lord Mansfield being absent) delivered the opinion of the court: “ This conviction is a jumble of confusion of charges and punishments; it is a conviction for playing at bowls, and the punishment inflicted is imprisonment as an idle and disorderly person. The ftat. 33 Hen. 8. c. 9. f. 15. lays a penalty of 205. on every labourer playing at bowls out of Chrifimas; the punishment is therefore clearly not under this stat. The stat. 17 Geo. 2. c. 5. 9. 1, describes four kinds of idle and disorderly persons *, and being an explanatory act, we cannot go out of it. Now bowling is not an offince within any of these descriptions, consequently the defendant is not punishable as an idle and disa

3. See the general princivle that all qualifications or exemptions should be negatively set out in convictions in p. 652, supra, and in Vol. I. p. 547.

4. First, perfons threatening to run away, and leave their families ; 2. returning to the parish removed from ; 3. refulng to work ; 4. persons beg. ging alms. See title VAGRANTS.

orderly

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