every game of cards which is not a game of mere skill, and any other game of mere chance.' (f) Baccarat has been held to be within this category. (g)

Excessive gaming is not in itself a legal offence, but the fact that it is habitually carried on in a gaming-house is strong evidence that the house is a common gaming-house so as to make the keeper of it liable. to be indicted for a nuisance. (h)

By the 8 & 9 Vict. c. 109, s. 17, '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, pastime, or exercise, 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 or valuable thing from such other person by a false pretence, with intent to cheat or defraud such person of the same, and, being convicted thereof, shall be punished accordingly.'

This section comprises several distinct branches :

I. Any fraud or unlawful device or ill-practice in playing at or with cards, dice, tables, or other games; and under this clause the offence consists in the fraud, unlawful device, or ill-practice, and it seems perfectly immaterial whether the game be or be not lawful.

II. Any fraud or unlawful device or ill-practice in bearing a part in the stakes, wagers, or adventures on the sides or hands of them that do play; and here, too, the offence consists in the fraud, and not in the nature of the game.

III. Any fraud or unlawful device or ill-practice in betting on the sides or hands of them that do play; and here, also, the same remark applies.

IV. Any fraud or unlawful device or ill-practice in wagering on the event of any game, sport, pastime, or exercise; and here, also, the same remark applies. On the whole, therefore, the gist of every offence created by this section appears to be the fraud, unlawful device, or ill-practice; and therefore it seems unnecessary to cite the numerous civil cases decided on the following section.

Tossing with coins for wagers is a pastime within the meaning of the section. (i)

An indictment alleged that the prisoner by fraud, unlawful device, and ill-practice in playing at and with cards, unlawfully did win from one H. F. Bernard to a certain person unknown a certain sum of money, with intent to cheat the said H. F. Bernard of the same, and it was moved, in arrest of judgment, that the indictment was bad for not alleging the ownership of the money won; but upon a case reserved, it was held that the indictment was sufficient, as it described the offence in the words of the statute. (j)

In the preceding case some of the judges intimated an opinion that

(f) Per Hawkins, J., Jenks v. Turpin, infra. Games of skill played for money would appear to be 'gaming.' See Dyson v. Mason, 22 Q. B. D. 351.

(g) Jenks v. Turpin, infra.

(h) Jenks v. Turpin, 13 Q. B. D. 505. See ante, p. 747.

(i) R. v. O'Connor, 15 Cox, C. C. 3. (j) R. v. Moss, D. & B. C. C. 104, 26 L. J. M. C. 9.

the offence might be committed, although no money were actually paid; as the word 'win' might be construed in the sense of obtaining a title to a sum of money by becoming the winner of a stake; but such a construction is plainly inconsistent with the latter part of the clause, for how can a person, who merely obtains a title to a thing, 'be deemed guilty of obtaining such money or valuable thing from such other person'? If, however, a case were to occur where every other ingredient of the offence were proved except the payment of the money, the party might be convicted of an attempt to commit the offence under the 14 & 15 Vict. c. 100, s. 9.

Where on an indictment under the 8 & 9 Vict. c. 109, s. 17, it appeared that the prisoners began to play at skittles in the prosecutor's presence; and B., one of them, appeared to be very drunk, and played so badly that he lost every game; and the others then persuaded the prosecutor to play with B., and stake large sums. upon the game, for he was sure of winning; and the prosecutor accordingly did play with B. several games for large sums, every one of which he lost; and the prisoners, having got all the prosecutor's money, ran away; it was contended that there must be fraud in the act of playing, and here the fraud was before the game commenced; and the Recorder held, that the fraud relied on must. be a fraud put in practice during the game itself. (k)

Where the three prisoners being at a public-house with the prosecutor, one of them, in concert with the others, placed a pen-case on the table and left the room, and whilst he was absent one of the others took the pen out of the case, and put a pin in its place, and the two prisoners induced the prosecutor to bet with the third prisoner when he returned that there was no pen in the case, and the prosecutor staked fifty shillings, and on the pen-case being turned up another pen fell into the prosecutor's hand, and the prisoners took the money; it seems to have been considered clear that this case did not come within the 8 & 9 Vict. c. 109, s. 17. (₹)

Inciting Infants to bet or borrow money.

By the Betting and Loans (Infants) Act, 1892, (55 Vict. c. 4.) a new offence is created.

By sec. 1. (1.) If any one, for the purpose of earning commission, reward, or other profit, sends or causes to be sent to a person whom he knows to be an infant any circular, notice, advertisement, letter, telegram, or other document which invites or may reasonably be implied to invite the person receiving it to make any bet or wager, or to enter into or take any share or interest in any betting or

(k) R. v. Bailey, 4 Cox, C. C. 390. The prisoners were convicted of a conspiracy to cheat. It was also contended that the game of skittles was not within the first clause of the section; that the words 'other game' must be confined to the same sort of game as those previously specified, which were all games of chance; and that the

game of skittles was more reasonably included within the latter branch of the clause but no opinion was expressed on this point.

(1) R. v. Hudson, Bell, C. C. 263, 29 L. J. M. C. 145. The prisoners were convicted of a conspiracy to cheat.

wagering transaction, or to apply to any person or at any place, with a view to obtaining information or advice for the purpose of any bet or wager, or for information as to any race, fight, game, sport, or other contingency upon which betting or wagering is generally carried on, he shall be guilty of a misdemeanor, and shall be liable, if convicted on indictment, to imprisonment, with or without hard labour, for a term not exceeding three months, or to at fine not exceeding one hundred pounds, or to both imprisonment and fine, and if convicted on summary conviction, to imprisonment, with or without hard labour, for a term not exceeding one month, or to a fine not exceeding twenty pounds, or to both imprisonment and fine.

(2.) If any such circular, notice, advertisement, letter, telegram, or other document as in this section mentioned, names or refers to any one as a person to whom any payment may be made, or from whom information may be obtained, for the purpose of or in relation to betting or wagering, the person so named or referred to shall be deemed to have sent or caused to be sent such document as aforesaid, unless he proves that he had not consented to be so named, and that he was not in any way a party to, and was wholly ignorant of, the sending of such document."

--

Sec. 2. (1) If any one, for the purpose of earning interest, commission, reward, or other profit, sends or causes to be sent to a person whom he knows to be an infant any circular, notice, advertisement, letter, telegram, or other document which invites or may reasonably be implied to invite the person receiving it to borrow money, or to enter into any transaction involving the borrowing of money, or to apply to any person or at any place with a view to obtaining information or advice as to borrowing money, he shall be guilty of a misdemeanor, and shall be liable, if convicted on indictment, to imprisonment, with or without hard labour, for a term not exceeding three months, or to a fine not exceeding one hundred pounds, or to both imprisonment and fine, and if convicted on summary conviction, to imprisonment, with or without hard labour, for a term not exceeding one month, or to a fine not exceeding twenty pounds, or to both imprisonment and fine.

(2.) If any such document as above in this section mentioned sent to an infant purports to issue from any address named therein, or indicates any address as the place at which application is to be made with reference to the subject-matter of the document, and at that place there is carried on any business connected with loans, whether making or procuring loans or otherwise, every person who attends at such place for the purpose of taking part in or who takes part in or assists in the carrying on of such business shall be deemed to have sent or caused to be sent such document as aforesaid, unless he proves that he was not in any way a party to and was wholly ignorant of the sending of such document.'

Sec. 3. If any such circular, notice, advertisement, letter, telegram, or other document as in the preceding sections or either of them mentioned is sent to any person at any university, college, school. or other place of education, and such person is an infant, the person sending or causing the same to be sent shall be deemed to have

known that such person was an infant, unless he proves that he had reasonable ground for believing such person to be of full age.'

Sec. 4. If any one, except under the authority of any court, solicits an infant to make an affidavit or statutory declaration for the purpose of or in connexion with any loan, he shall be liable, if convicted on summary conviction, to imprisonment, with or without hard labour, for a term not exceeding one month, or to a fine not exceeding twenty pounds, or to both imprisonment and fine, and if convicted on indictment, to imprisonment, with or without hard labour, for a term not exceeding three months, or to a fine not exceeding one hundred pounds.'

Sec. 5. If any infant, who has contracted a loan which is void in law, agrees after he comes of age to pay any money which in whole or in part represents or is agreed to be paid in respect of any such loan, and is not a new advance, such agreement, and any instrument, negotiable or other, given in pursuance of or for carrying into effect such agreement, or otherwise in relation to the payment of money representing or in respect of such loan, shall, so far as it relates to money which represents or is payable in respect of such loan, and is not a new advance, be void absolutely as against all persons

whomsoever.

For the purposes of this section any interest, commission, or other payment in respect of such loan shall be deemed to be a part of such loan.'

Sec. 6. In any proceeding against any person for an offence under this Act such person and his wife or husband, as the case may be, may if such person thinks fit, be called, sworn, examined, and crossexamined as an ordinary witness in the case.'

CHAPTER THE THIRTY-NINTH.

OF OFFENCES RELATING TO DEAD BODIES.

Removing dead bodies. It is an indictable offence to take up a dead body, even for the purpose of dissection. Upon an indictment for this offence it was moved in arrest of judgment, that if it were any crime, it was one of ecclesiastical cognizance only; that it was not made penal by any statute; and that the silence of Stamford, Hale, and Hawkins, upon this subject, afforded a very strong argument to show that there was no such offence cognizable in the criminal courts. But the Court said, 'that common decency required that the practice should be put a stop to; that the offence was cognizable in a criminal Court, as being highly indecent, and contra bonos mores; at the bare idea alone of which nature revolted. That the purpose of taking up the body for dissection did not make it less an indictable offence: and that, as it had been the regular practice of the Old Bailey, in modern times, to try charges of this nature, many of which had induced punishment, the circumstance of no writ of error having been brought to reverse any of these judgments was a strong proof of the universal opinion of the profession upon this subject; and they, therefore, refused even to grant a rule to show cause, lest that alone should convey to the public an idea that they entertained a doubt respecting the crime alleged. (a) To sell the dead body of a capital convict for the purposes of dissection, where dissection is no part of the sentence, is a misdemeanor, and indictable at common law. (b) To expose the naked dead body of a child in a public highway is, as we have seen, an indictable misdemeanor. (c)

1

It is an offence against decency to take a person's dead body, with intent to sell or dispose of it for gain and profit. An indictment charged (inter alia) that the prisoner a certain dead body of a person unknown lately before deceased wilfully, unlawfully, and indecently did take and carry away, with intent to sell and dispose of the same for gain and profit; and it being evident that the prisoner had taken the body from some burial ground, though from what particular place was uncertain, he was found guilty upon this count. And it

(a) R. v. Lynn, 2 T. Rep. 733. 1 Leach, 497. 2 East, P. C. c. 16, s. 89, p. 652. In 4 Black. Com. 236, 237, stealing a corpse is mentioned as a matter of great indecency; and the law of the Franks is mentioned (as in Montesqu. Sp. L. b. 30, ch. 19), which directed that a person who had dug a corpse out of the ground in order

to strip it, should be banished from society, and no one suffered to relieve his wants till the relations of the deceased consented to his readmission.

(b) R. v. Cundick, D. & R. N. P. C. 13, Graham, B.

(c) R. v. Clark, 15 Cox C. C. 169. Ante,

p. 748.

AMERICAN NOTE.

1 See C. v. Loring, 8 Pick. 370.