C. A. 1903 MINING COMPANY V. NEW BALKIS share shall be absolutely assured to the new shareholder, and adds that "thereupon he shall be deemed the holder of such share, discharged from all calls due prior to such purchase, RANDT GOLD and he shall not be bound to see to the application of the purchase-money, nor shall his title to such share be affected by any irregularity in the proceedings in reference to such EERSTELING, sale." To my mind it is absolutely impossible to consider that that has relation to anything except what it purports to have Earl of Halsbury relation to, namely, the title of the new shareholder to the forfeited share. I do not wish to say anything beyond the immediate necessities of the case. For myself I doubt whether any contract made by the directors of a company in the name of the company, which would affect their obligation to preserve their statutable rights, could have any operation. But I do not deal with that question here, because in this case there was no such contract made. All that was done was that a certificate was given following the language of art. 22; and for the reasons which I have given that certificate was not intended to protect the purchaser from paying that which, by becoming a shareholder, he became liable to pay, namely, the amount remaining unpaid on the shares. For these reasons I am of opinion that the appeal should be dismissed. LORD ALVERSTONE C.J. I entirely agree with the judgment of the Lord Chancellor for the reasons which he has given. SIR F. H. JEUNE P. I am of the same opinion. Appeal dismissed. Solicitors for defendants: Dale, Newman & Hood. J. F. C. LIMITED. 1903 Feb. 7. [CROWN CASES RESERVED.] THE KING v. ALBERT DEAVILLE. THE KING v. JOHN DEAVILLE. THE KING v. SIMPSON. Gaming-Place used for Betting-Bar of Public-house-Betting Act, 1853 (16 & 17 Vict. c. 119), s. 3. Where a bookmaker is in the habit of frequenting the bar of a publichouse for the purpose of carrying on a business of ready-money betting with persons resorting thereto, but for the purposes of that business does not occupy any specific portion of the bar, the question whether he 99 uses the bar for the purpose of betting in contravention of s. 3 of the Betting Act, 1853, depends upon whether he so carries on his betting business there with the knowledge and permission of the occupier of the house. Belton v. Busby, [1899] 2 Q. B. 380, and Tromans v. Hodkinson, [1903] 1 K. B. 30, followed. CASES stated by the recorder of Hanley for the consideration of the Court for Crown Cases Reserved. THE KING v. ALBERT DEAVILLE. 1. The indictment charged that the defendant on May 24, 1902, being a person then using a certain licensed public-house known by the name of the Park Inn at Hanley, unlawfully did use the said house for the purpose of betting with persons resorting thereto, contrary to the provisions of s. 3 of the Betting Act, 1853. Seven other counts charged a similar offence on seven subsequent days. 2. It was proved that the defendant was a bookmaker, and that on each of the days mentioned in the indictment he was in fact for a considerable time in the "vaults" or an adjacent public room of the Park Inn. He there received on each occasion money from persons by way of bets on horses, and on several of these occasions he paid money to persons in respect of winnings on bets made, some or all in the same place. No evidence was given that the occupier or his servants saw or knew what was going on. 1903 REX v. ALBERT REX v. JOHN DEAVILLE. 3. At the close of the case for the prosecution, counsel for the defendant submitted that there was no case for the jury. He contended that the user prohibited by the Betting Act, 1853, was the user by a person having something in the nature DEAVILLE. of dominion or control over the place, having some right of user peculiar to himself as against others, or at least having the permission or licence of the occupier, and he cited Whitehurst v. Fincher (1), Powell v. Kempton Park Racecourse Co. (2), and Belton v. Busby. (3) In reply, Belton v. Busby (3) was relied on as distinguishing Powell v. Kempton Park Racecourse Co. (2) from the present case. 4. The recorder refused to withdraw the case from the jury. He directed them, in accordance with the case of Reg. v. Worton (4), to consider whether the defendant did in fact use the respective rooms on the days mentioned, and if so whether he used them for the purpose of betting with persons resorting thereto. He directed them that a mere casual user of the rooms would not be sufficient, but that if the defendant attended there with the expectation that persons would come to bet with him, and for the purpose of inviting them so to do, and so of carrying on his business as a bookmaker, that would be a breach of the statute, and he told them that no evidence of permission by the occupier was necessary, nor was it necessary that the defendant should have any control, dominion, or right peculiar to himself as against others over the place. The jury found the prisoner guilty on all counts. Danckwerts, K.C., and Keogh, for the appellant. The bookmaker here was not a person "using" the vaults for betting purposes within the meaning of the section. To come within the section he must use it as his office, room, or place-that is to say, he must have some exclusive right in it as against other persons. In Powell v. Kempton Park Racecourse Co. (5), in the Court of Appeal, Lord Esher says: "Now there are and must be some essential rights of a person using a place as his (1) (1890) 17 Cox, 70. (2) [1899] A. C. 143. (3) [1899] 2 Q. B. 380. (5) [1897] 2 Q. B. 242, at p. 257. REX V. SIMPSON. 1903 REX v. ALBERT REX V. JOHN DEAVILLE. REX v. SIMPSON. house, his office, or his room different from the rights as to it of persons who are not using it as their house, office, or room. He must have some rights of user peculiar to himself, and DEAVILLE. exclusive of their rights, if any" "A man cannot be said to be using a table as his table if any person who can find room at the table has as much right as he has to come to it and use it in any way such person thinks fit." A. L. Smith L.J. says (1): "The user of a place in common with mankind in general is not such an user as is contemplated by the Act." The language there used applies as well to bookmakers betting in the public room of an inn as upon a racecourse. Lord Halsbury in the same case in the House of Lords says (2): "I think it is clear that what the statute is dealing with here is the case of persons who are in control and occupation of the place which is assumed to be the betting establishment." . . . “It is not the repeated and designed, as distinguished from the casual or infrequent, use which the employment of that word imports here, but the character of the use as a use by some person having the dominion and control over the place, and conducting the business of a betting establishment with the persons resorting thereto." The decision in Belton v. Busby (3), where a bookmaker, who was in the habit of attending at the bar of a beerhouse for the purpose of betting, was held to have "used" it within the meaning of the section, is not inconsistent with the present contention, for there the bookmaker not merely frequented the bar for betting purposes, but did so with the knowledge and permission of the occupier, so that, as Grantham J. said, he had "something in the nature of a right or licence to use the bar of the beerhouse for the purposes of his betting business over and above the right of an ordinary member of the public to resort there." And the conviction in the recent case of Tromans v. Hodkinson (4) was affirmed upon the same ground. In each of those cases the frequency of the use of the bar by the bookmaker for betting purposes, coupled with the landlord's permission so to use it, was sufficient to shew that the bookmaker used it as his betting office. (1) [1897] 2 Q. B. 242, at p. 276. (3) [1899] 2 Q. B. 380. 1903 REX บ. ALBERT REX v. JOHN DEAVILLE. REX v. SIMPSON. B. C. Brough, for the prosecution. It was not essential to the decisions in Belton v. Busby (1) and Tromans v. Hodkinson (2) that the landlords should have assented to the betting being carried on in their houses. What is aimed at by the DEAVILLE. Act is the localization of betting. "It is not betting, whatever may be its kind, which, independent of locality, is struck at, but it is the providing of a locality for particular kinds of betting which is the mischief to be dealt with": per Lord Esher M.R. in Powell v. Kempton Park Racecourse Co. (3) In the same case Lord James says (4): "Directly a definite localization of the business of betting is effected, be it under a tent or even movable umbrella, it may well be held that a 'place' exists for the purposes of a conviction under the Act." And this principle was since that decision applied by Darling and Channell JJ. in Brown v. Patch (5) to the case of a bookmaker standing upon a box on a racecourse and inviting persons to bet. It was there held that he ought to be convicted, although there was no evidence that the owners of the racecourse gave him any special permission to use the box for that purpose. When once you get a sufficient localization of the betting business the permission of the owner of the premises is superfluous. And you do get a sufficient localization wherever the business is carried on in a house, office, or room, even though the bookmaker may have no special right or interest in the house, office, or room in question. This was the view of A. L. Smith L.J. in the Kempton Park Case (6), for he said: "I do not propose to deal with the numerous cases which have arisen about the user of rooms at public-houses by betting men when carrying on their business of betting with persons resorting thereto, for the words 'house' and 'room are specifically mentioned in the Act as two of the prohibited places, when used by a betting man for the carrying on the business of betting therein, and in my judgment those cases have no application to betting in an inclosure at a racecourse in the usual way as in the present case." And that Lord (1) [1899] 2 Q. B. 380. (2) Ante, p. 30. (3) [1897] 2 Q. B. 242, at p. 256. (4) [1899] A. C. 143, at p. 194. (6) [1897] 2 Q. B. 242, at p. 279. |