GOVERNORS ance of the objects and purpose for which the corporation was FOR RELIEF established, would be various ways of accomplishing the same end, namely, making a donation to the corporation itself. OF POOR v. SUTTON. [ 664 ] [*665] What words would amount to and constitute a "particular and specific trust," so as to bring a bequest or donation within. the meaning of the word " endowment," according to the sense in which it appears to have been used in this section, taken alone, it is not necessary for the present purpose to consider, as no such question arises, when it does, the Court must determine it. The land in question was paid for out of the general funds of the corporation voluntarily contributed to its support. The length of time that the investment has lasted cannot alter the character of it. The land remains as much a voluntary contribution as if the money which purchased it had been given to the corporation only twelve months ago, and had been by its managers invested in the purchase of land rather than in the purchase of stock, in consequence of their considering land to be the more eligible investment. The fact, of land being the investment, cannot convert the investment into an "endowment," if the purchase of stock or of Exchequer bills would not have produced that effect. Upon this section alone, therefore, the word "endowment" does not, in my opinion, apply to land purchased by the corporation simply for the purpose of the investment of its funds or savings. But the difficulty does not cease when this conclusion is arrived at, for on turning to the interpretation clause, I find such a startling and extensive meaning given to the word "endowment " as, if construed literally, would seem wholly to supersede section sixty-two; for it is impossible that an institution can possess any property or any right to any property whatever that may not be embraced by the term "endowment so interpreted. A voluntary contribution, as contra-distinguished from an "endowment," could not, in this extended meaning, *be said to exist. The instant that the guinea is paid by the annual subscriber to the treasurer it is, to use the words of the interpretation clause, "money which for the time belongs to, or is held in trust for, the charity." Even tables and chairs and other personal chattels would come within the enumeration of "personal estate whatsoever." It could not have been the intention of the Legislature to introduce a careful, though obscurely worded, exception from the general operation of the Act, and then, by a general interpretation clause, wholly to negative the force of the exception, and, in fact, expunge it from the Act. It is the duty of the Court, if possible, to recon GOVERNORS OF POOR WIDOWS, &C. OF SUTTON. cile and give effect to both sections. The only way in which this, in my opinion, can be done is to retain the interpretation I have already given to the word " endowment" in section sixty-two, namely, the devotion of property to a specific and particular CLERGYMEN trust, and to give it the same meaning in section sixty-six (the interpretation clause), that is, to hold that the meaning of this clause is not to enact that the possession by any charity of any property of the various kinds there enumerated constitutes an "endowment; " but that property of all the classes and character there specified may be made the subject of " endowment;" and therefore land, money, every species of real and personal property whatsoever, including even personal chattels,-provided any such were, either by the will of the donor or otherwise, impressed with a particular and specific trust--may be made the subject of endowment" in favour of the charity. 66 66 This interpretation would not fetter the right of the charity, or the power of its managers, to dispose of property not so devoted, or, to use the words of the statute as construed by me, "not so endowed, to any purposes which they might consider necessary for the purposes of the institution, and in the due discharge of the duties attached to them." This construction makes the distinction between endowed funds and funds voluntarily contributed, taken by the sixty-second clause, plain and unambiguous; and this, although not altogether satisfactory, is the only way to construe this very obscure statute, and give effect to both its provisions. I cannot adopt the suggestion derived from the analogy of suits for the specific performance of contracts, in which the Court declines to force a title on a purchaser in a case where the question on which the title depends is not considered clear. The principle of these cases is, that there exist persons not before the Court, and therefore not bound by the decision, whe may afterwards raise the same question; but that principle cannot affect the present case. The only persons who could hereafter raise this question would be the corporation itself, which, being present, is bound by this decision. But the principal distinction is, that this is not a suit for the specific performance of a contract, but a special case, where both parties have agreed to take the opinion of the Court on the facts stated. The Court is bound to form and express its opinion. I have formed mine, and I declare it to be, that the consent of the Charity Commissioners to this sale is not necessary. [ *666 ] 1860. May 26. [1] [2] IN THE QUEEN'S BENCH. PATTEN r. RHYMER (1). (3 El. & El. 1-6; S. C. 29 L. J. M. C. 189; 6 Jur. N. S. 1030; 2 L. T. N. S. 352; 8 W. R. 496.) Stat. 9 Geo. IV. c. 61, s. 21 (2), imposes penalties upon an innkeeper for offences against the tenor of his license. The form of license is given in Schedule C. of the Act (3), and contains a proviso that the innkeeper shall not knowingly suffer any unlawful games or any gaming whatsoever in the licensed house and premises : Held, that an innkeeper was liable to conviction, under sect. 21, for playing cards for money with private friends of his own in his own private room in the inn. CASE stated by two justices of Essex, under stat. 20 & 21 Vict. c. 43. This was an information under stat. 9 Geo. IV. c. 61, s. 21 (2), against the appellant, who is an innkeeper at Great Baddow, in Essex, for knowingly suffering gaming in *his house and premises, by permitting several persons to play at cards for money; contrary to the tenor of his license. It was proved by the evidence of two police officers that, about twelve o'clock on the night of 10th January, 1860, they entered the inn kept by the appellant, at Great Baddow, as a party then in the house was in the act of breaking up and leaving; that they found cards and also money upon a table in the bar-parlour, where five persons had been assembled, and four of whom were then in the room, the appellant being one of them. The appellant admitted that they had all been playing cards together, for money, at a very low stake, and that the other four persons had come there by his invitation. On behalf of the appellant it was satisfactorily proved that the parties present were respectable tradesmen of the parish, moving in the same sphere of life as himself, and that they had come to his house, upon the occasion in question, as his private friends and by his special invitation; that they had all been in the habit of visiting at each other's houses for the purpose of playing a friendly game of cards, and it had arrived at the appellant's turn to invite them to his house; and that the room where they were assembled was a private room of the appellant, and there were no other persons in the house but the five persons before mentioned. It was contended before the justices, on behalf of the appellant, that the law was never intended to deprive the innkeeper of his right to invite his private friends to his house for the purpose and under the circumstances proved. s. 75. The justices were of a contrary opinion, and held that, under (1) Dyson v. Mason (1889) 22 Q. B. D. 351, 355, 58 L. J. M. C. 55, 60 L. T. 265. (2) Repealed, 35 & 36 Vict. c. 94, (3) Schedules repealed, S. L. R. Act, 1873. the words of the statute and the tenor of his license, an innkeeper was not entitled knowingly *to permit cards to be played for money in any part of his licensed house and premises; and they therefore convicted the appellant in a mitigated penalty. The question for the opinion of the Court was, whether, under the circumstances, the determination of the justices was right. No counsel appeared in support of the conviction. Barrow, for the appellant: The appellant has committed no offence against the tenor of his license. The form of the license is given in stat. 9 Geo. IV. c. 61, Schedule C., and contains a proviso that the person licensed shall not "knowingly suffer any unlawful games or any gaming whatsoever" in the licensed premises. The appellant has been convicted for knowingly suffering gaming in his premises. But, in the first place, all playing at cards is not gaming. Stat. 8 & 9 Vict. c. 109, s. 1, repeals so much of stat. 33 Hen. VIII. c. 9, as declares any game of mere skill an unlawful game. Games at cards which require the exercise of skill, and are not mere games of chance, are, therefore, no longer unlawful: and, as the conviction does not specify the particular game which was played, the appellant is entitled to the benefit of the presumption that it was a game of skill. (CROMPTON, J: How can any games at cards be games of mere skill? COCKBURN, Ch. J.: All such games are more or less games of chance, though requiring skill also. WIGHTMAN, J.: In Richardson's Dictionary "to game" is defined, "to play for money.") Every game played for money is not unlawful. (BLACKMAN, J. But is it not gaming?) Even assuming that it is, then, in the second place, it cannot have been in the contemplation of the Legislature to prevent an innkeeper from *inviting his private friends to a game of cards with him in a private part of the house. The acts which the statute forbids him to do or allow are acts done or allowed by him as an innkeeper, not as an individual. (COCKBURN, Ch. J.: There is this to be said in your favour, that it does not appear that the appellant intended any colourable evasion of the statute. Still, the Legislature may have intended to prohibit all card playing on the licensed premises. WIGHTMAN, J.: The difficulty of any other construction of the statute is that it would open a door to collusion.) PATTEN t. RHYMER. [ *3] [+] PATTEN 2. RHYMER. [ *5] The part of the premises where the appellant was entertaining his friends was his private dwelling-house, and not part of the inn. COCKBURN, Ch. J.: tion. The words of the license are large enough to embrace the circumstances of the present case, and to justify the convicThere is certainly a great difference between what is done by the landlord of an inn as landlord, and that which he does as a private individual. The Legislature may, however, have thought it necessary to prohibit any gaming, by any person, on any part of the licensed premises. Although I am not quite satisfied that such was their intention, I think that the safer course is to hold that it was; just as they appear, by the preceding proviso in the form of license, to have prohibited drunkenness or other disorderly conduct in any part of the premises (1). WIGHTMAN, J.: I am of opinion that the conviction was right. I consider that the object of the Legislature *was to impose, upon any person obtaining a license, the condition not knowingly to suffer any gaming on the licensed premises; whether the gaming be unlawful or what may be called innocent. The words "any gaming whatsoever " are wide enough to prohibit gaming of every description. Playing cards for money is gaming; granting that, under the circumstances of the present case, the gaming was innocent. Although nothing of the sort is here imputed to the appellant, it might be easy for a fraudulent person to evade the law, supposing it not to prohibit all playing at cards for money, by pretending that the gaming consisted merely of playing at a lawful game at cards with his private friends. CROMPTON, J.: The schedule to stat. 9 Geo. IV. c. 61, gives the form of license; which forbids not unlawful games only, but any gaming whatsoever. It was in the first place contended for the appellant that stat. 8 & 9 Vict. c. 109, s. 1, has rendered certain games, formerly prohibited, lawful; but that enactment cannot be called in aid to interpret the word "gaming" in this Beer Act. As my brother WIGHTMAN has pointed out, playing for money is gaming. The only question therefore is, whether gaming by the landlord with his private friends in his private |