No. II. c. 7. Prevention of excessive and immoderate Gaming. 1 Vent. 253. 1 Lutw. 180. debt bill plaint or information in any of his Majesty's courts at Westminster, wherein no essoin protection or wager of law shall be allowed: And 16 Car. II, that all and every such plaintiff or plaintiffs informer or informers, shall in every such suit and prosecution have and recover his and their treble costs against the person offending and forfeiting as aforesaid; any law statute custom or usage to the contrary in any wise notwithstanding. III. And for the better avoiding and preventing of all excessive and immoderate playing and gaming for the time to come, be it further ordained and enacted by the authority aforesaid, That if any person or persons shall at any time or times after the nine-and-twentieth day of September aforesaid, play at any of the said games or any other pastime game or games whatsoever (other than with and for ready money), or shall bet on the sides or hands of such as do or shall play thereat, (1.) and shall lose any sum or sums of money or other thing or things so played for exceeding the sum of one hundred pounds (2.) at any one time or meeting upon ticket or credit or otherwise, and shall not pay down the same at the time when he or they shall so lose the same, the party and parties who loseth or shall lose the said monies or other thing or things so played or to be played for above the said sum of one hundred pounds, shall not in that case be bound or compelled or compellable to pay or make good the same; but the contract and contracts for the same and for every part thereof, and all and singular judgments statutes recognizances mortgages conveyances assurances bonds bills specialties promises covenants agreements and other acts deeds and securities whatsoever, which shall be obtained made given acknowledged or entered into for security or satisfaction of or for the same or any part thereof, shall be utterly void and of none effect: (3) And that the said person or persons so winning the said monies or other things shall forfeit and lose treble the value of all such sum and sums of money or other thing or things, which he shall so win gain obtain or acquire above the said sum of one hundred pounds; the one moiety thereof to our said Sovereign Lord the King his heirs and successors; and the other moiety 4 Mod. 409. The Penalty. (1.) In Pope v. St. Leger, 1 Salk 3444 Mod. 409-5 Mod. 4-1 Lutw. 484. it was ruled, that the statute did not extend to a bet, as to the proper manner of playing at Backgammon -being not on the right of the play but on the chance of the play, which is collateral. But in Brown v. Lunn, 2 H. B. 43. Lord Loughborough refused to try a cause upon a wager, as to the chances of the dice at Hazard-and ordered it to be struck out of the paper as being of a nature highly improper to be made the foundation of an action-with a proviso, that it should be restored in case the Court should be of a different opinion, and the Court refused an application for the cause to be restored. Gould, J. said, "The game of Hazard stands condemned by the law of England; there are many statutes which make it illegal, and nothing can be more injurious to the morals of the nation, than a public discussion of this nature, before an audience whose curiosity is excited to attend the time of such questions. The refusal, therefore, to try it, was both laudable and legal." Heath, J. "All games at Dice, except Backgammon, are prohibited by law, and I think it would be vilifying and degrading Courts of Justice, if they were to allow, by means of a wager, a discussion on prohibited games." The counsel for the defendant had urged, with respect to the case of Pope v. St. Leger, that the bet was concerning a legal game, Backgammon being excepted out of the Statutes, which prohibited other games at dice. The reporter pro perly notices, that that could not be the ground of the decision, as the exemption in favour of Backgammon was first made by statute 15 Geo. 2. c. 19. sec. 9. (and which is only an exception from the particular provisions of that statute.) The summary decision in Brown v. Lunn can hardly be sufficient to constitute a direct autho. rity upon the mere question of law, with respect to the proper method of playing at any game or chance, (supposing the question to be raised in a direct and regular manner,) in opposition to the express authority of Pope v. St. Leger. (2.) There are several cases as to the application of this clause, where different sums exceeding in the whole 1001. were lost to different persons at the same time, or to the same person at dif, ferent times, and with respect to contracts being distinct, for which see Noel v. Reynolds, 2 Show. 185-Danvers v. Thistleworth, cited 1 Salk. 345 -Dickson v. Pawlet, 1 Salk. 345.-Edgebury v. Rosendale, 2 Lev. 94-S. C. by the name of Hedgeborrow v. Rosenden, 1 Ventr. 253 Stanhope v. Smith, 5 Mod. 352-Hudson v. Mulliner, 3 Keb. 672. (and which cases are collected in Viner's Abridgment, title GAMING.) The cases are immaterial with respect to their direct application, since the statute 9 Anne, c. 14. post; but query whether they may not be applied as referrable to contracts of Gaming above or below 104. and see Notes to that Statute. (3.) See Notes to Statute 9 Anne, post. thereof to such person or persons as shall prosecute or sue for the same within one year next after the time of such offence committed; and to be sued for by action of debt bill plaint or information in any of his Majesty's courts of record at Westminster, wherein no essoin protection or wager of law shall be allowed: And that every such plaintiff or plaintiffs informer or informers, shall in every such suit and prosecution have and receive his treble costs against the person and persons offending and forfeiting as aforesaid; any law custom or usage to the contrary notwithstanding. [ No. III. ] 10 & 11 William III. c. 17.—An Act for Suppressing of Lotteries. [Inserted Part VI. Class XX. No. HI.] [No. IV. ] 9 Anne, c. 6.-An Act for reviving, continuing and appropriating certain Duties upon several Commodities to be exported; and certain Duties upon Coals to be water-born and carried Coastwise; and for granting further Duties upon Candles, for Thirty-two Years; to raise Fifteen Hundred Thousand Pounds, by way of a Lottery, for the Service of the Year One Thousand Seven Hundred and Eleven; and for suppressing such unlawful Lotteries, and such Insurance Offices, as are therein mentioned, [Inserted Part VI. Class XX. No. IV.] [ No. V. ] 9 Anne, c. 14.-An Act for the better preventing of excessive and deceitful Gaming. No. II. 16 Car. II. c. 7. WHEREAS the laws now in force for preventing the mischiefs which 9 Anne, c. 14. may happen by gaming, have not been found sufficient for that purpose; Therefore for the further preventing of all excessive and de- Mortgages, &c. ceitful gaming, be it enacted by the Queen's most excellent Majesty, by where the Conand with the advice and consent of the Lords Spiritual and Temporal sideration is for Money won by and Commons in this present Parliament assembled, and by the authority Gaming or for of the same, That from and after the first day of May one thousand seven hundred and eleven all notes bills, (1.) bonds, (2) judgments, (3.) Money lent at Repayment of Gaming, &c. shall be void. (1.) In Hussey v. Jacob, 1 Salk. 344. it was said, that if a bill accepted for money lost at play had been assigned to a stranger bona fide upon good consideration, he had not been within the statute (16 Charles II.) for he was not privy to the Act, but an honest creditor. But in Bowyer v. Bampton, 2 Str. 1155. it was ruled, that the statute of Anne extends to render void bills and notes in the hands of an innocent indorsee, and such is now the established law. The same was ruled with respect to bills void for usury in Lowe v. Walker, Doug. 705---see the other cases connected with that doctrine, and which apply equally to the case of gaming in the general note on the law of usury--ante Class V. No. 1. (2.) In an anonymous case, 2 Mod. 279. 29 Chas. II. it is stated, that A. wins 1001. of B. at play, and A. owing C. 1001. brings C. to B. who owned the debt, and B. gives C. a bond for the 1007. C. not being privy to the matter accepted the bond, and afterwards C. put it in suit. The obligor pleaded the statute 16 Chas. II.; but the plaintiff, disclosing the whole matter, the Court were of opinion upon demurrer that it was not a case within the statute, and gave judgment for the plaintiff. The case is referred to by Holt, C. J. in Hussey v. Jacob, 1 Salk. 344; but Qu. if this case would now be allowed as law. (3.) A young man gives bills for the amount of a gaming debt, and when they were due he renewed them with the then holder, and for the last bills he confessed a judgment. The Court of C. B. would not set aside the judgment, unless he could affect the holder of the bills with notice, but permitted him to try that fact in an issueGeorge v. Stanley, 4 Taunt. 683. No. V. 9 Anne, c. 14. mortgages or other securities, (4.) or conveyances whatsoever, given granted drawn or entered into or executed by any person or persons whatsoever, where the whole or any part of the consideration of such conveyances or securities shall be for any money or other valuable thing whatsoever won by gaming or playing at cards dice tables tennis bowls or other game or games (5.) whatsoever, or by betting on the sides (6.) or (4.) In Young v. Moore, 2 Wils. 67. it was insisted, that though the statute had made all writings and securities for money won at play void, that it had not made parol contracts for money won at play void, to this it was answered and resolved by the Court, that as the statute hath made all securities for money won at play void a fortiori, all parol contracts of this sort are void, and the court distinguished the case from that of Barjeau v. Walmsley, infra Note 7, on the ground of the latter being for money lent. It is observable, that this provision as to avoiding the security makes no distinction between the gaming being for 101. or less; and that by the express terms of the statute a security for money won by gaming, although less than 101. would be void. In Blaxton v. Pye, 2 Wils. 309. it was held, that upon a bet of 147. against El. on a horse-race, no action could be maintained against the loser of 8. as he would not have been entitled to receive the 141. and that the contract was therefore nudum pactum, and the same was decided in Clayton v. Jennings, 2 Bl. Rep. 706; and Lord Kenyon, referring to the cases of Blaxton v. Pye, in Good v. Elliott, 3 T. R. 706, said, that had the wager been within the limits allowed by the statutes, there is no doubt but that it would have been held good; in Bulling v. Frost, 1 Esp. Cas. N. P. his Lordship held, that an action might be maintained to recover the sum of 31. 10s. lost at all-fours; and in M'Allister v. Huden, 2 Campb. N. P. 438. it was ruled, by Lawrence, J. that an action might be maintained upon a wager for less than 101. ou a horse-race. It seems, however, very doubtful whether in any of these cases the present provisions of the statute was sufficiently adverted to; and whether the enactment, that all securities for money won by gaming should be void, ought not to be considered as vitiating all contracts for money so won, so far as affects the right of recovery, although the subsequent provision for recovering back money actually paid relates only to sums amounting to 10. In the case of Young v. Moore, the action was for above 101. and the question consequently did not arise ;---but see Note 7, post. (5.) In Jeffereys v. Walter, 1 Wils. 220. the Court of B. R. inclined to give judgment for the defendant, that cricket was a game within the statute, but the case stood over and the parties agreed. In Goodburn v. Manley, 2 Str. 1159. it was held, that a wager on a horse-race was a game within this Act, being mentioned in the Statute 16 Chas. II.; and in Lynall v. Longbottom, 2 Wills. 36. determined upon a different ground, it was said by Willis, J. in delivering the opinion of the Court, is agreed on all hands that a footrace is a game within the Statute 9 Anne; and in Brown v. Berkeley, Cowp. 282. the court, upon the authority of that case, ruled a foot-race against time to be within the Act, and gave judg ment for the defendant in an action of covenant upon such a wager. The case of Blaxton v. Pye, mentioned in the last note, and several other cases also, clearly treat horse-racing as a game within the statute. In Clayton v. Jennings, 2 Bl. Rep. 706. (referred to in the preceding note,) Aston, J. mentioned the case of Connor v. Quick, in the King's Bench about ten years before, when the Court took a distinction between racing a horse for 501. which was lawful, and betting on the side of a horse which was not so.-(But see the last note.) In Johnson v. Burns, 4 T. R. a wager under 101. upon a horse-race for less than 50%. prohibited by Statute 13 G. III. c. 19.) was ruled to be illegal. In Ximenes v. Jaques, 6 T. R. 499. judgment was arrested in an action on a wager for 100 guineas, that the plaintiff would perform a journey in a post-chaise and pair within a given time, but no reasons for the judgment were stated by the Court. In Whaley v. Pigot, 2 B. & P. 51. judgment was arrested in an action on a wager that a horse of the defendant should perform a journey in a less time than two horses of the plaintiff, to be placed on the road as the plaintiff should think proper. Lord Eldon, after generally noticing the provisions of the Statutes, 16 Charles II. and 9 Anne, said, "The 16 Chas. II. does not in terms avoid any contract-[which ob servation, however, is not correct, the second section making an express provision to that effect]but the transaction on which the contract is founded being prohibited, the contract itself cannot be supported. The 9th of Anne expressly avoids the contract- -[but see the preceding note.] These statutes were followed by 13 Geo. II. c. 19. and 19 Geo. II. c. 34; but if many contracts founded in horse-racing have been held illegal previous to these statutes, it might be found difficult to maintain that such horse-racing could now be deemed legal which before had been deemed illegal. But the 13 Geo. II. having prohibited many species of horse-racing, the law seems to have implied that such species of horse-racing as were not prohibited by that statute by not being prohibited became legal ; and the 18th George II. having taken away some of the prohibitions and penalties of 13 Geo. II. the same kind of reasoning seems to have been applied, namely, that these species of racing, with respect to which certain restrictions were taken away, were thereby altogether legalized. There seems to be much ground for arguing from the nature of the 16th Charles II. and 9th Anne, that these Acts ought to be construed strictly, in order to enforce the principles on which they are founded, namely, to prohibit all horse-racing; and that the 13th and 18th of Geo. 11. are from their nature to be so construed as to encourage the breed of horses, and to permit that species of horse-racing only No. V. 9 Anne, c. 14. hands of such as do game at any of the games aforesaid, or for the reimbursing or repaying any money knowingly lent or advanced for such gaming or betting (7.) as aforesaid, or lent or advanced at the time and place of such play to any person or persons so gaming or betting as aforesaid, or that shall during such play so play or bet, shall be utterly void frustrate and of none effect, to all intents and purposes whatsoever; any And where statute law or usage to the contrary thereof in any wise notwithstanding; and that where such mortgages securities or other conveyances shall be such Mortof lands tenements or hereditaments or shall be such as incumber or gages, &c. shall encumber any affect the same, such mortgages securities or other conveyances shall Lands, &c. enure and be to and for the sole use and benefit of, and shall devolve they shall devolve to such Person as should have been intitled to them, in case such Grantor had been dead, &c. And all Conveyances to hinder such Lands from devolving, &c. shall be void. See 2 Bur. 1080. 1 Wills. 220. 2 Wills. 36, 67. 309. called racing on the Turf. It is to be observed, that the 13 Geo. II. speaks of entering, placing, starting, &c. and that the expression any place or places whatever,' used in 18 Geo. II. can hardly mean England ;" and afterwards, on delivering the opinion of the Court, his Lordship said, "Upon inquiry of the Judges of the Court of King's Bench we find that the judgment of that Court in Ximenes v. Jaques, proceeded on an opinion, that the 13th and 18th Geo. II. relate to bona fide horse-racing only; without, therefore, again entering into the grounds before stated, it is sufficient for me to declare it to be the opinion of the Court, that the transaction described in this case is not that species of horserace or match which is legalized by 13 and 18 Geo. II. and consequently that this action cannot be maintained." By a note inserted in Mr. Nolan's edition of Strange to the case of Goodburn v. Manley, it appears that it was objected in that case, that inasmuch as a late statute was made against horse-racing, that was an argument that horse-racing was not published by any of the former laws, for if it were, this statute need not have been made; and, therefore, it was said it would not be within the Statute of the 9th of Anne ; but to this it was answered by the Court, that though horse-racing might not be unlawful, yet betting at horse-races was so; and that the late Act of Parliament speaks only of running of horses or horse-racing, but speaks nothing of betting at horse-races, which is the present case, and, therefore, that rule cannot anyways affect the present case. I certainly cannot see any legitimate ground on which it could be held, that the Statute of 13th Geo. II. (the title and language of which are altogether prohibitory,) could be admitted to give validity to contracts, which, independently of those statutes, would be considered illegal; and there seems to be much more weight in the argument that the express prohibition of such races, under particular circumstances, afforded evidence of their being considered as legal, independently of those prohibitions, although certainly many Acts are passed which manifest a great want of attention to the real purport and effect of preceding enactments. And in some of the cases which have occurred the attention seems to have been rather directed to the inquiry, whether the statutes of Geo. II. contained an exception to the prohibitions assumed to be contained in the preceding statutes, than to the question how far such prohibitions really attached, and it is very difficult to reconcile some of the cases with the established doctrine as to the general validity of wagers not affected by particular grounds of objection. (6.) In an action for recovering money won on a bet, that J. C. could not run a certain distance in a given time, the Court directed a nonsuit— because it did not appear upon the statement of the case, that J. C. was playing at a game called a foot-race, and as it did not appear that he was playing at any game, there could not be any betting on his side.-Lynall v. Longbottom,2,Wills. 36. (7.) In Barjeau v. Walmsley, 2 Str. 1249, the plaintiff and defendant gamed together at tossing up, and the plaintiff having won all the defendant's money lent him ten guineas at a time and won it, till the defendant had borrowed 120 guineas, and in an action to recover the money, Lee, C. J. held, that this was not a case within the Act, for there is not the word contract, as in the Statute of Usury, and the word securities, as it stands in the Act, must mean lasting securities upon the estate. The Parliament (he said) might think there would be no great harm in a parol contract, where the credit was not likely to run very high, and therefore confined the Act to written securities, wherefore the plaintiff obtained a verdict. In Allanbrook v. Hall, 2 Wils. 309, the defendant having lost above 107. upon a bet, at a horse-race, requested the plaintiff to pay it for him, which he did, and the defendant objected, that this money being lost at gaming, and recoverable tack again by the Statute 9 Anne, the action would not lie; but the Court held, that this was not a case within the Statute, upon the ground stated in the preceding case, and gave judgment for the plaintiff. In Robinson v. Bland, 2 Burr. 1077-1 Bl. 234, 256, it was ruled, that a Bill of Exchange given in France by one British subject to another, the consideration of which was partly money won at play, and partly money lent to play with, was void for the whole; but that the plaintiff might recover, on the common courts, the money lent. The case contains some important views with respect to the general question of the legality of a contract entered into in a different country. No. V. 9 Anne, c. 14. The Loser of 101. &c. at Cards, &c. may sue for the And if the Losers do not sue, &c. any other Person may; and recover with treble Value; one Moiety to the Informer, the other to the Poor. upon such person or persons as should or might have or be entitled to such lands tenements or hereditaments in case the said grantor or grantors thereof or the person or persons so incumbring the same had been naturally dead, and as if such mortgages securities or other conveyances had been made to such person or persons so to be intitled after the decease of the person or persons so incumbring the same; and that all grants or conveyances to be made for the preventing of such lands tenements or hereditaments from coming to or devolving upon such person or persons hereby intended to enjoy the same as aforesaid, shall be deemed fraudulent and void and of none effect, to all intents and purposes whatsoever. II. And be it further enacted by the authority aforesaid, That from and after the said first day of May one thousand seven hundred and eleven, any person or persons whatsoever who shall at any time or sitting, (8.) by playing at cards dice tables or other game or games whatsoever or by betting on the sides or hands of such as do play at any of the games aforesaid, lose to any one or more person or persons so playing or betting in the whole the sum or value of ten pounds, and shall pay or deliver the same or any part thereof, the person or persons so losing and paying or delivering the same (9.) shall be at liberty within three months then next to sue for and recover the money or goods so lost, and paid or delivered or any part thereof from the respective winner and winners (10.) thereof, with costs of suit by action of debt founded on this Act, (11.) to be prosecuted in any of her Majesty's courts of record, in which actions or suits no essoin protection wager of law privilege of Parliament or more than one imparlance shall be allowed; in which action it shall be sufficient for the plaintiff to allege, that the defendant or defendants are indebted to the plaintiff or received to the plaintiff's use the monies so lost and paid or converted the goods won of the plaintiff to the defendant's use, whereby the plaintiff's action accrued to him according to the form of this statute, without setting forth the special matter; and in case the person or persons who shall lose such money or other thing as aforesaid, shall not within the time aforesaid really and bona fide and without covin or collusion sue and with effect prosecute for the money or other thing so by him or them lost and paid or delivered as aforesaid, it shall and may be lawful to and for any person or persons by any such action or suit as aforesaid to sue for and recover the same and treble the value thereof, with costs of suit, against such winner or winners as aforesaid; the one moiety thereof to the use of the person or persons that will sue for the same, and the other moiety to the use of the poor of the parish where the offence shall be committed (12.) (8.) In Bower v. Booth, 2 Bl. Rep. 528, the Court held, that money won between Monday evening and Tuesday evening, the parties having been gaming without interruption, except for an hour when the parties were at dinner, without parting company, was won at one sitting. Per Blackstone, J.-To lose 101. at one time is to lose it at a single stake or bet. To lose it at one sitting is to lose it in a course of play where the company never parts, though the person may not be actually gaming the whole time; and by Gould and Nares-The Statute, with respect to the party losing, is remedial, not penal-although (by Nares) it is penal, where the action is brought by a common informer :-so by Gould, with respect to a proceeding on that branch of the Act which inflicts pillory or other corporal punish ment. (9.) This right passes to the assignees under a Commission of Bankrupt.-Brandon v. Sands, 2 Ves. jun. 514-Brandon v. Pate, 2 H. B. 308. (10.) To an action founded on the Statute, the defendant may plead in abatement, that the mo ney was due from others as well as himself.Bristow v. James, 7 T. R. 527. (11.) In trover for a mare, lost upon a gaming contract, (the action being commenced after three months,) it was ruled, that the plaintiff was not entitled to recover, on account of the general invalidity of the contract; and by Heath, J.There is no substantive clause in the Act, which avoids the contract; it only renders it liable to be defeated sub modo, for which purpose the plaintiff must bring his action in a limited time.-And in Thistlewood v. Crocroft, 1 M. & S. 502, it was held that money fairly lost at play could not be recovered back as paid without consideration, in an action for money had and received, not concluding according to the form of the Statute. (12.) Semble, that in an action for the penalties given by the 9 Anne, c. 14. s. 2. a bill of discovery filed against the defendant for the purpose of a former action, on the former part of that section, for the money lost, may be given in evidence. Thistlewood v. Crocroft, 1 Marsh 497. S. C. 6. Taunton 141, and see Billing v. Pulley. 2 Marsh 125, n. |