XVII. How the penalties under the game laws are recoverable.

55

By 8 Geo. 1. c. 19, Where any perfon fhall, for any of fence against any law now in being ", for prefervation of the game, be liable to pay any pecuniary penalty upon conviction before any juftice of peace, it fhall be lawful for any other perfon, either to proceed to recover the faid penalty by information before a juftice, or to fue for the fame in any court of record. /. 1.

And by 2 Geo. 3. c. 19, It fhall be lawful for fuch pere fon, to fue for and recover the whole penalty for his own ufe, by action of debt, or on the cafe, bill, plaint, or infor mation, in any court of record at Wefiminger, and if he recovers, he fhali have double cofts; and no part of the penalty, recovered in any fuch fuit, fhall be paid to the use of the poor. f. 5.

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

And no offender fhall be profecuted for the fame offence, both by the way preferibed by this law, and by the way prefcribed by any of the former laws; and in cafe of any fecond profecution, the perfon fo doubly profecuted may plead in his defence the former profecution pending, or the conviction or judgment thereupon. 8 Geo. I. c. 19.

55. The penalties under the acts fubfequent to this act of 8 Geo I, are therefore recoverable, as thofe acts particularly direct.

effence at common law.

T

Gaming and Gaming-Houles.

Gaming not an feems that by the common law, the playing at cards, IT dice, and the like, when practifed innocently and as a recreation, the better to fit a perfon for bufinefs, is not at all unlawful, nor punishable as any offence whatsoever. 2 Vent. 175. 5 Mod. 13. Salk. 100, pl. 10.

But

1. Neither is the laying of WAGERS in general illegal; for indifferent wagers upon indifferent matters, are allowed by the law of this country, if they do not fall within the reftraint of any particular act of parliament: and the amount of any fuch wagers may confequently be recovered in an action brought for the fame, laying it by way of mutual,promifes; but the subja matter of the wager itself may in many infances render fuch wagers illegal, and prevent their being recovered, as if they be against public policy; against decency; or tend to affect the particular interefts of individuals.

Sce

But although gaming is not malum in fe, and may be lawful, yet if a perfon be guilty of cheating, as by playing with falfe cards, dice, and the like, he may be indicted for it at common law, and fined and imprifoned, according to the circumftances of the cafe and heinoufnefs of the offence. 2 Bacon's Abr. 620.

Alfo all common gaming-houses are nuifances in the eye of the law, not only becaufe they are great temptations to idlenefs, but also because they are apt to draw together great numbers of diforderly perfons, which cannot but be very inconvenient to the neighbourhood. 1 Hawk. c. 75. S. 6.

And as the practice of gaming among the inferior fort of But refrained people is productive of the most deftructive and pernicious by ftatutes. confequences, by its evident tendency to promote public

idlenefs, theft, and debauchery, feveral ftatutes have been

made for restraining this vice.

And by 33 Hen. 8. c. 9. No perfon fhall for his gain, Gaming-houses lucre, or living, keep any common houfe, alley, or place of prohibited. bowling, coiting, cloyfh, cayls, half bowl, tennis, dicing, tables, or carding, or any other game prohibited by ftatute heretofore made 2, or any unlawful new game; upon pain to forfeit for every day 40s. f. 11.

It was refolved upon this claufe, 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 thefe are not within the ftatute; 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 houfe, this is not within the ftatute, nor is such person that plays in

See the cafes of Da Cofia v. Jones, Cowper's Rep. 729. and Good v. Elliot, 3 Term Rep 693.

But in fuch wagers there must also be a mutual liability to pay; for in the cafe of Blaxton v. Pye, where an action 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. c. 14./.2 (e p. 74, infra), have refufed to pay the fourteen guincas, if he bad loft, there was no mutuality in the wager, and therefore he fhould not recover the eight guineas of the defendant. 2 Wilf. 309.-The like was alfo determined in Clayton v. Jennings, reported in Black. Rep.. 706. on a bet of ten guineas to five on a fimilar race.

2. The other games prohibited by former ftatutes, which are only repea'ed as to the penalties, are foot-ball and cafting of the ftone, and other fuch importune games, prohibited to be ufed by fervats of hufbandry labourers, and fervants of artificers and victuallers, by 12 Rie. 2. c. 6. hand ball by the fame perfons, by 11 Hen. 4. c. 4; hand in and hand out, and quekborde, by 17 Edw. 4. c. 3; playing at tables, but only for meat and drink, by apprentices and fervants of husbandry, labourers, and fervants artificers, by 1 iten. 7. c. 2; and all playing at tables by the fame perfons, by 19 Hen. 7. c. 12.'

Haunting gaming houtes.

Power of

jullices.

fuch houfe that is not kept for lucre or gain, within the penalty of the law. Dalton. c. 46.

Every perfon ufing any of the faid houfes, &c. and there playing, thall forfeit for every time 6s. 8d. f. 12.

And it fhall be lawful to all juftices of peace, mayors, fheriffs, bailiffs, and other head officers, within every city, town, or borough, to enter into all fuch houfes and places where fuch games fhall be fufpected to be used; and as well the keepers of the fame, as alfo the perfons there reforting and playing, to arrest and imprifon; unto fuch times as the keepers of the faid games have found fureties to the king's ufe, no longer to ufe, keep, or occupy fuch houfe, game, or place; and also that the perfons there found be in like cafe bound no more to play, haunt, or exercife from thenceforth, in, at, or to any the faid places, or at any of the faid games. f. 14.

And the mayors, fheriffs, bailiffs, conftables, and other head officers within every city, borough, or town, fhall make fearch weekly, or at furtheft once every month, where any fuch houfes, plays, or places, fhall be fufpected to be kept; and if they do not make search once every month, if the cafe fo require, according to this act, and do not execute the fame in all things, every fuch mayor, &c. fhall forfeit for every month 40s. f. 15.

And no artificer, handicraftfman, husbandman, apprentice, labourer, fervant at hufbandry, journeyman, or fervant of artificer, mariner, fishermen, watermen, or any fervingman, shall play at tables, tennis, dice, cards, bowls, cloyth, coiting, logating, or any other unlawful game, out of Chrifimas, under pain of 20s. and in Chriftmas to play at the faid games in their master's houses, or in their master's prefence ; and no perfon fhall play at bowls in open places out of his garden or orchard, under pain to forfeit 6s. 8d. f. 16.

But it shall be lawful for every mafter to licence his fervants 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 prefence. /. 22.

It fhall 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 fervants or family to play within the precinct of their houfes at cards, dice, tables, bowls, or tennis, as well amongst themselves as others repairing to the fame houses. f. 23.

And all juftices of peace, mayors, and all other head officers, finding or knowing any perfon ufing unlawful games, fhall have power to commit fuch offender to ward, until he be bound to the king's ufe, in, fuch fum as they think reasonable, that they fhall not from thenceforth ufe fuch unlawful games. f. 16.

And

And by 2 Geo. 2. c. 28, Where it fhall be proved on the oath of two witneffes, before any juftice of peace, as well as where fuch juftice fhall find upon his own view, that any perfon hath used any unlawful game, contrary to the statute 33 Hen. 8. c. 9. the justice shall have power to commit fuch offender to prifon, unless he enter into recognizance with fureties, or without, at the difcretion of the juftice, that he fhall not from thenceforth play at fuch unlawful games. J. 9.

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

But by 31 Eliz. c. 5, All fuits to be purfued upon any ftatute (then in force) for ufing any unlawful game, fhall be fued and profecuted, or otherwise heard and determined in the general quarter feffions or affizes of the county where the offence fhall be committed, or in the leet, within which it shall happen, and not in any wife out of the county. 1.7.

This ftatute of 33 Hen. 8. feems to have been greatly misapprehended by fome juftices of the peace, infomuch that they have been induced to confider the offenders as idle and diforderly perfons; this is however not warrantable, as appears from the following cafe:

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 JB, of, &c. came be"fore me W C. one, &c. and gave me to understand and "be informed that TC of, &c. labourer, on the 16th of « Aug. 1773, did use and play at a certain unlawful game "with bowls and pins, called bowl-rufhing, with divers "liege fubjects of our faid lord the king, and did then and "there receive divers fums of money of the faid fubjects, playing at the faid game, against the form of the ftatute, "&c. and against the peace, &c. and pray that the faid "TC may be convicted of the faid offence: whereupon "afterwards, on, &c. the faid T C being apprehended and "brought before me, &c. to answer to the faid charge, &c. "the faid TC is afked by me if he can fay any thing for "himself, why he the faid T C should not be convicted of "the premises above charged upon him, &c. and thereupon "the faid TC of his own accord fully acknowledges the premises, &c. to be true as charged, and does not thew to me any fufficient caufe why he should not be convicted

"thereof.

"thereof. Whereupon all and fingular the premises, &c. "being confidered and due deliberation being thereunto had, "I do adjudge and determine that the faid TC is guilty of "the premifes &c. and that the faid T C is therefore an idle "and diforderly perfon, and is also therefore a rogue and vaga"bond within the true intent and meaning of the ftatutes in "that cafe made and provided. And the faid TC is ac"cordingly by me convicted of the offence charged upon "him in and by the faid information, and of being an idle "and diforder ly perfon, and a rogue and vagabond, in form "aforefaid: and I do hereby adjudge and order that the "faid TC be therefore committed to the house of correction, "there to remain for the space of one month, being a lefs "time than until the next general quarter feffions of the peace, or until the faid TC thall find fureties to be bound "in recognizance to appeat before the next quarter sessions, "and for his good behaviour in the mean time." The court at firft quafhed 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 fub mods. Afterwards in the fame term lord Mansfield faid, a doubt had arifen, "Whether, as by another part of the fixteenth 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 obferved," the punishment appeared to be under the vagrant act, 17 Geo. 2. c. 5. /. 1. therefore defired it might be fpoken to again upon this point, and alfo whether it was a good adjudication under this latter ftatute." Afterwards Mr. J. Afton (lord Mansfield being absent) delivered the opinion of the court: "This conviction is a jumble of confufion of charges and punishments; it is a conviction for playing at bowls, and the punishment inflicted is imprisonment as an idle and diforderly perfon. The ftat. 33 Hen. 8. c. 9. f. 15. lays a penalty of 20s. on every labourer playing at bowls out of Chrifimas; the punishment is therefore clearly not under this ftat. The ftat. 17 Geo. 2. c. 5. f. 1, defcribes four kinds of idle and diforderly perfons, and being an explanatory act, we cannot go out of it. Now bowling is not an offence within any of these defcriptions, confequently the defendant is not punishable as an idle and dif

3. See the general principle that all qualifications or exemptions fhould be negatively fet out in convictions in p. 652, fupra, 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. refusing to work; 4. perfons beg ging alms. See title VAGRANTS.

orderly