to the hotel-keeper, by the increased sale of liquors and cigars by reason of the running of the game, and where cards are sold to the gamblers at a profit, the proprietor of the hotel is liable under sec. 226 of the Criminal Code for keeping a room for gain in which mixed games of chance and skill are played.

Held, further, that, apart from the sale of the cards, where such a person keeps such a room where a game of cards is constantly running, and where it is apparent that the room is maintained so that outside persons may resort thereto and play, and thereby increase the business of the hotel, the proprietor is equally liable if it is clear that the object of encouraging such playing is to increase the bar sales.

Held, also, that a "rake-off" such as is mentioned in the case of Rex v. James, 6 O. L. R. 35, and Rex v. Sala, 7 W. L. R. 336, is not necessary to constitute the offence, that being only one form or mode of obtaining the gain.

Charge against the defendants of keeping a common gaming house, heard by CRAIG, J., acting as Police Magistrate for the city of Dawson.

CRAIG, J.-This charge is laid under sec. 226 of the Criminal Code. The defendants are charged with keeping a common gaming house, as defined by that section, to which persons resorted for the purpose of playing at games of mixed chance and skill, namely, the game commonly called "Poker" and the game called "Solo." The police obtained a warrant under the Code to raid the house, and upon that raid they found 5 players in a room adjoining the bar. These men were playing a game known as "Draw-poker " and that variety of the game which is known as "the Jackpot game." They were seated at a table in which a crescent is cut out of one side of the table, and described by witnesses as what is known as a gambling table, the banker usually sitting in the crescent, and under this crescent there was a bell. The room was heated and lighted by the proprietor of the hotel, who was a licensee under a Yukon Ordinance. The players were shewn to have been there on 5 different occasions during the month covered by the charge, and were there by an arrangement made among themselves by which no one was to be allowed into the game unless he was able to buy at least $50 worth of chips or sometimes $100 worth, but not less than $50 worth This was known as the table-stake. Some 8 persons were mentioned as having played on different occasions, on the different nights, but always under the same arrangement. None of these was resident in the hotel, but, having met, they made this arrangement to resort to this hotel and play. One of them-Kennedy-was named as the

banker. He, with the consent of the others, on the several occasions on which they met, obtained the chips, which were used to represent money, from the bar-tender or from the bar of the hotel. Nothing was paid for the use of these chips, but during the progress of the game drinks and cigars were called for by summoning the bar-keeper by rapping on the table or other signal. He came, attended to their wants, and was paid by the players, either in money if they had the correct change, or in chips, which chips he afterwards cashed with the banker. The chips with which they played represented 25 cents, $1, and $5 respectively. The game was what might be known as a heavy game. When the police entered, they ordered the men to cash in their chips, which they did, one man cashing as much as $165.75. One of the witnesses swore to there being a box of cards lying on the window-sill in the room where they were playing, and the landlord Dubois, one of the defendants, in his evidence admitted that in the game of "Poker" he sold the cards when new packs were required; sometimes the packs were destroyed quickly, and for these he charged 50 cents a pack to the players. It was proven and admitted that he purchased cards by wholesale at 25 cents per pack or $3 per dozen. On this sale to the players he made a profit of 100 per cent. No very definite evidence was given as to the amount of liquor and cigars consumed, but on one occasion the banker remembered that he cashed in chips to the extent. of $4.25, admitting at the same time that several drinks. were paid for by cash. During the progress of the trial it came out in the evidence that "Solo" was the chief game played in the house, and the information was amended to add the words "and the game Solo." In connection with the game of Solo it was admitted and proven that no charge was made for cards in that game, and that this was the established custom, not only of this hotel, but of all public resorts in Dawson, where, it seems, this same sort of thing goes on. And the defendant Dubois admitted, in answer to the Crown counsel, that the inducement not to charge for the cards in "Solo" was because that game is more rapid and more drinks and cigars were sold. He said that perhaps 3 or 4 games of "Solo" an hour would be played, and the game was going on all day and every day and sometimes all night. No other room appeared to have been used but the one room, and this room sometimes contained a case of ale

or some clothes hanging up in it or baggage. It was only about 8 by 10 in size, fitted out with this table and chairs, and was constantly used as a card room as described.

We have here, I think, all the elements constituting the offence charged under the Act. We have people who are not residents in the hotel, resorting by arrangement to this place to play a game of mixed chance and skill for money. These men might be called noted gamblers. Three of them have been by admission already involved in gambling charges, one of them having served a term in gaol as a gambler, and were regular players in a heavy game of "Poker." Gambling, per se, is not illegal, that is, certain kinds of gambling. I do not think that either the game of "Solo" or "Poker" played even for money, without the other elements of being kept for gain in a place of resort, would be illegal. There is no prohibition by our local Ordinances against gambling in licensed hotels. The element of gain in both of these games will have to enter into the proof before I am justified in finding the accused guilty. How far, then, can we say that gain was the object of keeping this room? As was truly said in the case of Rex v. James, 6 O. L. R. 35, 38: “Gain' is that which is acquired or comes as a benefit, profit, or advantage,' and it may be derived indirectly as well as directly. The defendant was not keeping the room or place heated and lighted until all hours of the night and morning for nothing or for some benevolent or charitable purpose. The question of what is a keeping it for gain ought not to be embarrassed by the consideration of whether the amount the defendant receives is an actual substantial profit to him over the price of the cigars which he sells and the refreshments which he furnishes to the players. The question for the jury is whether he keeps the place for gain, and they may be properly told that the increased profits of the business derived from the sale of the defendant's goods to the persons who resort to his room for the purpose of play, is some evidence of keeping it for gain." That is the dictum of Osler, J.A. Maclaren, J.A., was equally strong in his views. And I think both these Judges excluded from their minds the question of the "rake-off" or as to whether there should or should not be a "rake off," as such, to find the accused guilty. The form in which the profit is taken seems to me to be immaterial, whether it comes directly by a "rake-off,"

keeping out a certain percentage of the money gained upon a certain turn of the cards, or whether it comes by virtue of the people resorting there and thereby increasing the business of the place. If that is the intention, I would not say that, if guests of the hotel sat down to play a casual game of cards and even for money, and in the course of the game treats were ordered in, that would constitute an offence. But where persons having no relation with the hotel resort night after night to a particular place and a particular room kept and lighted by the proprietor, and play a heavy game of gambling, and during that game order drinks and refreshments and buy cards at 100 per cent. profit to the proprietor, then I can come to no other conclusion than that the intention of the proprietor in keeping that room there is to acquire a profit by virtue of the resorting of these people to his house. The card sale is a direct gain. There can be no question about that. But I think, even apart from that-and that to me would be conclusive-the fact of selling cigars and drinks in increased quantities by virtue of the resorting would also be conclusive. I emphasised this point in a former judgment of mine in Rex v. Sala, 7 W. L. R. 336. The same case also appears in 13 Can. Crim. Cas. 187; and I see no reason to change the views there expressed, where I said it did not matter whether the keeper of the house got a direct gain from the game or not, that is, whether he was paid directly from the players by a "rake-off" or by the retention of chips, or by having any advantage in the game itself; if the carrying on of the game promoted the sale of his goods, to his knowledge, and was done for that purpose, he was equally liable; that is, although the result of the gambling may be simply the ordinary profit which he derives from the sale of his goods, yet, if he carried on the game with that object, he is liable, and no artifice or trick to cover the real nature of the game will save the offender from the operation of the Act.

Osler, J.A., in his judgment, in speaking of just such a condition as we find in the present case, says: "Such a place as the defendant kept is, in my opinion, one of the places the Act strikes at, perhaps one of the most dangerous." In the former cases there was the fact that a "rakeoff" was called or taken, that is, a certain percentage which went to pay the expenses of drinks, cigars, etc. For this reason the impression seems to prevail that there must be

the technical thing which is understood as "rake-off" in such games before there can be liability. Perhaps that was not made clear in my former judgment in Rex v. Sala, but my meaning was quite clear to those who read it. carefully, and I think that perhaps the impression has prevailed that unless the thing known as "rake-off" is taken there is no liability, and that these defendants honestly believed they were within the law as interpreted in this Territory. I am further convinced of this because in two former cases tried the other day the defendants pleaded guilty to the charge, saying that they did so because they took a "rake-off." My present judgment, I think, will make the matter clear; and because gambling is not prohibited in licensed premises by the law of this Territory, although I think it is in every other province, and because the defendants were possibly acting under a mistaken belief of what the law was, I think I shall in this case be lenient. I will find the accused guilty and sentence them to a fine of $25 with costs.

MANITOBA.

METCALFE, J.

MARCH 2ND, 1911.

TRIAL.

WOOSNAM v. MERCHANTS BANK OF CANADA. Cheque-Forgery-Payment by Bank-Cheque Charged to Customer's Account Action to Recover Amount Proof of Signature-Evidence-Onus-Acknowledgment -Estoppel-Stated Account.

A cheque purporting to be drawn by the plaintiff upon the defendants, a banking corporation, was paid and charged to the plaintiff's account. The plaintiff asserted that the signature of the cheque was a forgery, and sued for the amount of it. Before complaining to the defendants about the cheque, the plaintiff signed the defendants' voucher book, confirming the statement of his account with the cheque charged against it, but he did so before examining the cheque :

Held, that the onus was on the defendants to prove the signature to the cheque or to prove their defences of estoppel and stated account; and, upon the evidence, that they had not discharged the onus; and the plaintif was entitled to recover.

Action to recover $600, the amount of a cheque charged against the plaintiff by the defendants, with whom he kept an account, and alleged by him to have been forged.