1905. exist in order to bring such space within the word 'place.'" In SHERWOOD Liddell v. Lofthouse ([1896] 1 Q.B. 295, Kay, L.J., says at page v. PRIOR. Pring J. 299:-"But it is contended that the place was not sufficiently has been a user of a place analogous to the user of a place like a betting office, at which the person who keeps or uses that place is prepared to bet with people who come there and bet with him. In the present case I think the facts are sufficient to bring it within the statute, and that the inference ought to be drawn that what the respondent did was not merely indicating that he was a man prepared to bet with anybody who would bet with him, but it was indicating that he was using that place as a place where he could be found and was carrying on his business. He was localising his business there with the object of attracting people there." The result, I think, is this: that the "place" mentioned in the Act need not be ejusdem generis with "house, room, or office," in its physical or structural characteristics; it is sufficient if it is ejusdem generis with them in its use by the betting man. It must be a spot localised by some act of his which tends to notify to the public that he may be found there for the purpose of making bets. In order to prove such a localisation it is, of course, material to show the existence of accessories at the spot-snch as a fixed umbrella, a blackboard, or structure of any kind-but it is not absolutely necessary. In the Kempton Park Case Lord Davey at p. 188 says:-" And I regard it as altogether immaterial that the bookmakers do not stand on a stool or box, or use a gaudy umbrella for the purpose of rendering themselves more conspicuous or attracting the attention of their customers. Those are accessories which may afford useful evidence when the nature of the business is in doubt, but are not essential to the carrying on of the business." At p. 196 Lord James says:-" I think the statement of the same learned counsel that 'a place must be a place where a inan according to the ordinary usages would be found,' is correct." In the present case the defendant stood continually for months on a spot in the lane only about nine feet from the door of a room in which were all the accessories of betting; people went into that room, came out again, spoke to the defendant, and he gave them tickets. Can any other inference be drawn than that this was a place where a man according to the ordinary usages would be found; or to use the words of Channell, J., that what the defendant did was 1905. SHERWOOD V. PRIOR. Pring J. 1905. SHERWOOD v. PRIOR. Pring J. indicating that he was using the place as a place where he could be found and where he was carrying on his business; that he was localising his business there with the object of attracting people there-in fact, I think the case is much stronger than some of those in which the defendants have been held to be liable. Here is a man in close proximity to one of the very places mentioned in the Act, "a room," and a room, too, in which are all the accessories of betting. If he were in the room undoubtedly he would come within the Act. Can it be said that he is to escape because he stands a few feet from the door and attracts his customers to him there? In my opinion the place where he then stood was a "place" within the meaning of the Act. So far I have been discussing the question whether the spot could be a "place." I come now to the consideration whether there can be a "place" in a public lane. Naturally, the first question that suggests itself is this. Bearing in mind the object of the Act and the evil against which it is directed, is there any sound or sensible reason why betting of this nature should be prohibited in a private place and yet be allowed in a public thoroughfare? The evil in the latter case would far transcend that in the former. It seems ridiculous to suppose that the Legislature would prohibit betting in a paddock in some remote and sparsely populated suburb and yet permit it in the crowded thoroughfares of the city. Yet such is the contention on the part of the defendant. Admittedly it is based not on any logical foundation, but on an expression used in the judgment of Lord Halsbury in the Kempton Park Case and on an obiter dictum of Stephen, J., in Potter v. Thomas, in 19 N.S.W.L.R. at p. 180. He said: "If the lane had been a public place then I must say that I think our decision would be governed by the Kempton Park Case, the lane being similar in that respect to a racecourse." Every opinion expressed by that learned and eminent judge is entitled to the greatest weight, but in this instance I cannot help thinking that in making the remark above quoted he entirely misconceived the facts in the Kempton Park Case and the effect of the decision. The Kempton Park racecourse was not in any respect similar to a public lane. Paragraph 2 of the statement v. PRIOR. Pring J. of claim which is set out in 1889 A.C. at p. 144-" The defendant 1905. company has for the purpose of the said business acquired and SHERWOOD is the owner and occupier of the lands and premises known as the Kempton Park Racecourse, containing a considerable number of acres, which is enclosed by means of a substantial fence. Adjoining such course and forming part of the said land and premises the defendant company has fenced off and inclosed by means of iron rails a certain piece of ground or inclosure about one acre in extent, and known as Tattersall's Inclosure. Any member of the general public, including the persons mentioned in the next paragraph hereof, is admitted by the defendant company to the racecourse on payment of an entrance fee of 18. on ordinary occasions and 2s. 6d. on special occasions, and to the inclosure on payment of a further fee of the difference between the entrance fee paid and 17." At p. 145 there is the statement of defence, paragraph 1 of which is as follows:-"The defendant company adınits that it is the owner of the inclosure referred to in paragraph 2 of the statement of defence, which is known as the Reserved Inclosure, and not as Tattersall's: it does not exceed a quarter of an acre in extent." There in very plain language is the statement that the company was the owner of the racecourse and the inclosure, and that the public were admitted only on payment of fees. Neither the one nor the other was a public place any more than a private residence. But a public lane is a public highway, which any member of the public is entitled as of right and without payment to use at any hour of the day and night. I cannot regard the dictum of Stephen, J., as an authority on the point which we now have to decide. Reliance was also placed on a passage in Lord Halsbury's judgment at p. 162, where he says:-" The different betting people, or each individual bettor, is conducting his own business and doing it in a house used indeed, but only used, just as he might do it on the racecourse or on the high road." In order to understand the passage it is necessary to see what was the practice of the bookmakers. At p. 147 it is thus described :-" The bookmaker in the inclosure invariably carries on the practice of betting as hereinafter described. He is accompanied by a clerk who sometimes is in partnership with him, and who assists him in his 1905. transactions. He does not confine himself to any fixed spot in SHERWOOD the inclosure, nor does he use any such apparatus as a desk, v. PRIOR. stool, umbrella, or tent, though any particular bookmaker is Pring J. usually to be found in or near the same part of the inclosure.” Lord Halsbury was directing his attention to the question of "user" of a particular spot or place, not to the question whether there might be a "place" on the high road. on the high road. At p. 160 he says:"It is the personality of the betting man, and not his being in any particular place, which affords the opportunity of betting, and a man who walked along a public road shouting the odds in the way here described would be doing exactly the same thing. What he meant was that there was no localisation, that a man who walked about a paddock could not be said to be “using” a "place." A man who walked up and down the length of Georgestreet could not be said to be using a place, but if day after day he remained for hours at the same spot in the street in a carriage fitted up with all the accessories of betting could any reasonable man say that the Act would not apply? I cannot bring myself to believe that the Act intended to check the minor evil and to allow the greater to pass unpunished. My view is supported by the passage which I have cited from the judgment of Kay, L.J., in Liddell v. Lofthouse. For these reasons I think the Magistrate was wrong. At one stage of his argument Mr. Lamb contended that the "place" intended by the Act was a place over which the person using it had legal dominion and control. This argument, if sound, would at once destroy all or nearly all the decisions in which defendants have been held liable. He wisely abandoned such an impossible contention. All the Act requires is a user of a house, room, office, or place. It does not require the user to be by the owner. If so it would follow that a person who fitted up as a betting establishment an empty house belonging to someone else could carry on his trade with impunity. Lastly, it was contended that there was no evidence of user of the place by the defendant. I have already incidentally dealt with this |