HAWKE. 1902. Gaming and betting ment in English newspaper Permitting user of news paper office 16 & 17 Vict. c. 119, 88. 1, 3. MACKENZIE Stoddart v. Hawke (ubi sup.). The facts show that Terry used this บ. office in the sense that he paid the appellant to issue and sell his coupons at that office; he paid, as the magistrate has found, a price far in excess of the ordinary price of advertisements, and that payment was made to the appellant in order that the appellant might sell at this office Terry's coupons. The coupon itself User of office on the face of it described the price at which they were to be -Coupon sold. The real object of the paper was this back sheet-namely, competition the coupon-and the rest was all padding. Terry paid the appelOffice abroad -Advertise- lant to issue these coupons, and the moment that is found the case is within the decision of Stoddart v. Hawke (ubi sup.). Lord Alverstone, C.J. in that case says: "And from that office are issued the coupons, without which he would not receive any of the money which he does receive "; and Channell, J. says: "What is done here is that there is an office in this country from which are issued newspapers with an appendix to them called coupons. In my opinion these documents are an essential part of the system, and without them the money cannot be received." Those words precisely apply to this case. [Lord ALVERSTONE, C.J. -Do you say that it carries you to this extent, that any paper putting in the coupon can be convicted?] It is submitted that it does; if the evidence raises fairly the inference of fact that the paper is being bought for the sake of the coupon. Even if it were shown that some persons bought the newspaper for the joint purpose of reading the news and getting the coupon, that would not take the case out of the operation of the section, as it has been said more than once that the office need not be exclusively used for the prohibited purpose: (see the judgment of Mathew, J. in Hornsby v. Raggett, 66 L. T. Rep. 21; (1892) 1 Q. B. 20). If one of the purposes is the carrying on of this forbidden business it 15 enough. It is suggested that this case differs from Stoddart v. Hawke (ubi sup.) in this, that there is here no suggestion of agency; but here there was an agency, and Terry did employ the appellant as his agent to carry on this system in his office, and the appellant does everything there except receive the money. The phrase "to localise his business" goes beyond the judgments in the House of Lords in the Kempton Park case (ubi sup.). Lord Halsbury there says (1899) A. C. at p. 161) that there must be a person who, although neither owner nor occupier, is analogous to the owner, &c.; and Smith, L.J., whose judgment was expressly approved and adopted by the Lord Chancellor, points out the nature of the user: (see 77 L. T. Rep. at p. 13; (1897) 2 Q. B. at p. 276). There was abundant evidence on which the magistrate could find that Terry was a person using the office, and that the appellant permitted such user. Stutfield in reply.-The question really is whether Terry was using the office at all, not for what purpose he was using it, because if he was not using it at all the appellant cannot be convicted. Using is a different thing from resorting to a place, v. HAWKE. 1902. Gaming and bettingUser of office -Coupon competitionOffice abroad Advertise and, even if Terry had gone to the office personally, that would MACKENZIE have been not a user of the place, but a resorting to it. There must be a physical user either by the person himself or his agent, and a user by a person who is in control of the office; just as resorting means a physical resorting: (Reg. v. Brown, 18 Cox C. C. 81; 72 L. T. Rep. 22; (1895) 1 Q. B. 119). Here the betting business was not the appellant's; he took no part of the profits, and the utmost that can be said is that he was assisting to carry very on the business, and the business was the business of the newspaper: (Reg. v. Cooke, 51 L. T. Rep. 21; 13 Q. B. Div. 377). It has been held in Stoddart v. Argus Printing Company (85 L. T. Rep. 110); (1901) 2 K. B. 470) that these advertisements are not illegal. Hornsby v. Kaggett (ubi sup.), it is submitted, has been overruled by the Kempton Park case (ubi sup.). Reg. v. Stoddart (19 Cox C. C. 587; 83 L. T. Rep. 538; (1901) 1 K. B. 177) was also referred to. Lord ALVERSTONE, C.J.-This is one of four cases stated by a metropolitan police magistrate under the Betting Act, 1853. Three of them to a large extent involve the same point. I will deal with them in their order, indicating so far as is necessary what are the distinctive features of one from the other. In this case the magistrate convicted the appellant Mackenzie on two summonses which are set out in the case, for permitting the office at Bedford-street to be used by Terry, who was a person using the same for the prohibited purposes, and for opening, keeping, and using the office for the purpose of money being there received by or on behalf of Terry for the like consideration. The facts may be shortly summarised in this way. At that office there was published by the appellant a newspaper which was called Football Chat and Athletic World, and which contained on the last page that which is called an advertisement: "H. T. Terry's, Middelburg, Holland, Advertisement. Football Chat Football Skill Competition." It is not necessary to say more about the competition than that it clearly comes within the class of cases held to be illegal in many decisions in which these questions have arisen. The coupon was, when cut out, filled up and sent with money, addressed to "Football Chat, Middelburg, Holland." There were certain coupon rules from which it appeared that the names of the winners, as the result of the competition, would be advertised in the paper and the prizes remitted on a certain day, and everybody claiming to be a prize winner whose name did not appear in that list was required to send in a remonstrance or claim before a certain day. The sole addregs was said to be "Football Chat, Middelburg, Holland," and there appears below, "Printed and published by the proprietors, Bedford Publishing Press, at 23, Bedford-street, Strand.' It was stated before the magistrate-but he has not found it one way or the other as a matter of fact-that the appellant had no interest in the competitions, and we do not proceed upon any view that there is any finding upon which we could act that the ment in English newspaper Permitting user of newspaper office 16 & 17 Vict. c. 119, ss. 1, 3. v. 1902. competition ment in English newspaper Permitting user of newspaper office 16 & 17 Vict. c. 119, ss. 1, 3. of MACKENZIE Competition itself was on behalf of the appellant. It was stated that the appellant received a considerable amount more for HAWKE. the advertisements than the ordinary rate, and that the moneys were remitted to Holland and were returned, not, of course, passing through the hands of the appelGaming and bettinglant again. Upon that state of facts it was contended for the User of office appellant that there was no user by Terry of the office at 23, -Coupon Bedford-street, for an illegal purpose, and that, if there were no Office abroad user by Terry, there could be no permission by the appellant Advertise that Terry should so use it. I think it is extremely important to read the finding of the magistrate, and to see what it amounts to. [His lordship read the findings of the magistrate as set out in the case, and proceeded] It is scarcely necessary to say that that finding of the office being opened and kept for the purpose such user by Terry, and of Terry using the office for the purpose of these competitions, if there is evidence to support it, brings the case within one or more previous decisions. It is said by counsel on behalf of the appellant that there is no evidence on which that finding could properly be supported, because all that was done was that the coupons were printed and sent out from that office. In our opinion there was evidence upon which the magistrate could come to that conclusion. The coupon, and the receipt of the money by Terry with the coupon, is really of the essence of the scheme. The coupon goes out in order that the person may fill it up and may send it to Terry. It seems to us that that operation carried out at Bedford Street, where the paper could be obtained, was evidence of a user by Terry of that place for the carrying out of an essential part of his scheme, and therefore we think there was evidence upon which the magistrate could rightly find that Terry himself used this office, and that the appellant permitted Terry so to use it. It is to be noticed that there is no finding here of what I may call any independent newspaper undertaking; and, if it were an independent newspaper undertaking, it is difficult to understand why the money should be sent to Football Chat at Middelburg, and why the competition should be spoken of as "Football Chat Football Skill Competition." If it were a mere case of an ordinary innocent advertisement, a very different state of things would prevail. I have only to add with reference to this case that in the previous case of Stoddart v. Hawke (ubi sup.) we decided that the money need not be received at the place. The substantial finding that we there pointed out, and I repeat again, to be material, is that the place is used as a part of the essential machinery for the receipt of the money for the illegal purpose. Holding, as I do, that the findings of facts by the magistrate in this case could be justified by the evidence, I think he has come to a right conclusion, and that this appeal must be dismissed. DARLING, J.-I am of the same opinion. It appears to me to be found by the magistrate, and upon evidence which cannot be disputed, that the appellant permitted Terry, who had the office บ. HAWKE. 1902. Gaming and bettingUser of office -Coupon competition— Office abroad ment in English newspaper user of newspaper office16 & 17 Vict. c. 119, ss. 1, 3. at Middelburg in Holland, to advertise in the paper Football Chat, MACKENZIE and in that paper to issue the coupons which were procured at the office of the newspaper. Counsel for the appellant has argued that this sheet of Football Chat was nothing but an advertisement. He spoke of it as an advertisement, and as though all we were dealing with was an advertisement in the newspaper as to where one might go and get some information as to betting. But it is to be noticed that the real thing that was issued was much more than an advertisement. What was issued there was the series of coupons. They were issued as a part of the paper, -Advertisebut none the less they were coupons which people used for the purpose of betting; and the coupons that were issued from that office of Football Chat were a part of the machinery by which Permitting Terry carried on the business of betting with people who affected to choose, according to his system, what football clubs would win certain matches. When we have to consider whether he used the place for the purpose of betting with persons, clearly Terry used the newspaper for those purposes, and the newspaper was published at the office of Football Chat, and issued therefrom with the coupons attached. That possibly might alone be enough to bring this office within the statute. It is not necessary to decide that in this case, and I will not say whether I think it would be enough to bring it within the statute or not. I do not affect to decide that, and it is not necessary to do so, because the magistrate has here found that the appellant permitted the user of the office by Terry, and that he opened and kept the office for the purpose of such user by Terry, and that he derived a profit from it; that he charged considerably more than he charged for ordinary advertisements; he charged Terry for the privilege of putting these coupons into his paper considerably more than the ordinary charge. That being so, it seems to me that Terry did use this office for an illegal purpose within the meaning of this Betting Act, and that he used it by the permission of the appellant in the way which has been pointed out, and that therefore the appellant was also guilty within the Act for permitting the illegal thing to be done, which illegal thing Terry did. Therefore I am also of the same opinion as my Lord. CHANNELL, J.-I agree. I also wish to say that I found my judgment entirely on the finding in this case, which I think is a finding absolutely justified, and I have not the slightest doubt that it is absolutely true, that this office was opened and kept by the appellant Mackenzie for the express purpose of this thing being done. The whole object of this paper called Football Chat and Athletic World beyond all doubt was for the purpose of working this competition and scheme. The magistrate has found that, and, as he has found that, it seems to me that it brings the case absolutely and entirely within our previous decision in the case of Stoddart v. Hawke (ubi sup.). If it had not been for that finding I should have had some difficulty, because I think the argument for the appellant was right to a considerable extent v. HAWKE. 1902. Gaming and bettingUser of office - Coupon Office abroad It MACKENZIE —namely, that there must be something like a physical user of the office. The whole object of this Betting Act of 1853 is to prohibit betting offices within the meaning which the Legislature put on that word; and it is necessary that a person to be held liable for using the place must be a person who uses it either in the character of owner, keeper, or manager, or conductor of the business. If he is a person who has not that character, then he must be some other person who is analogous to and is of the competition- same genus as the owner, keeper, and occupier, as we see by one -Advertise portion of the judgment of the Lord Chancellor (Lord Halsbury) ment in in Powell v. Kempton Park Racecourse Company (ubi sup.). must be the use by some person having some kind of dominion or Permitting control over the place, or conducting his business there. Conuser of news- sequently, if this really were the case of two independent perpaper office16 & 17 Vict. sons, one carrying on a newspaper and the other having a scheme c. 119, ss. 1, 3. for receiving money by himself in Holland which he desired to advertise, and if this were a bonâ fide advertisement in a bonâ fide newspaper, I should think that the mere use of the newspaper was not the use of the office of the newspaper within the meaning of this statute. But on the findings, which, as I have said, are perfectly justified, that question does not really arise, and I therefore agree in dismissing this appeal. English newspaper Appeal dismissed. Solicitor for the appellant, Edward M. Lazarus. KING'S BENCH DIVISION. Friday, April 25, 1902. (Before Lord ALVERSTONE, C.J., DARLING and CHANNELL, JJ.) HAWKE V. MACKENZIE (Nos. 1 and 2). (a) Gaming-Office used for betting-Persons not resorting physically for that purpose-Coupon competition-AdvertisementBetting Act, 1853 (16 & 17 Vict. c. 119), ss. 1, 7-Betting Act, 1874 (37 Vict. c. 15), s. 3 (1). M._ was the proprietor of a sporting newspaper published in B.-street, London. T., who resided abroad, published in M.'s newspaper advertisements of certain illegal coupon competitions carried on by T. The only personal use T. made of the office (a) Reported by J. ANDREW STRAHAN, Esq., Barrister-at-Law. |