CHAPTER XXXIV. Сн. 34. ASSUMPSIT, AS TO GAMING CONTRACTS. Statute of N. declares makes the all contracts Mass. act, ART. 1. § 1. When contracts relate to gaming, it is often Debt on the material to know when actions can or cannot be supported on gaming acts. them. These gaming contracts, so far as they are void, are York, (Sess. chiefly so by the 9th of Anne, in England, and by a statute of 25, c. 44.) 1786, in Massachusetts; and by various statutes in the other horse-racing states. There have been many cases decided on the 9th of for money a Anne, in England, tending to explain the act; but few have nusance, been decided on our act. But as our act is nearly in the stake-holder whole verbatim, and in the material parts verbatim, with the indictable, & 9th of Anne, any explanatory cases on that, are so on ours. &c. void. § 2. By this act it is enacted, "that all notes, bills, bonds, 10 Johns. R. judgments, mortgages, or other securities, or conveyances what- 468, 469. soever, given, granted, drawn, entered into, or executed by March 4, any person or persons whatsoever, where the whole or any 1786. part of the consideration of such conveyances or securities See the acts of Virginia shall be for money or other valuable thing whatsoever, won by below. gaming, or playing at cards, dice, or any other game, or games, whatsoever, or by betting on the sides or hands of any person gaming, or for the reimbursing or repaying any money knowingly lent or advanced for any gaming or betting, or lent and advanced at the time and place of such play, to any person or persons so gaming or betting, or that shall, during such play, so play or bet, shall be void and of no effect." So far the 9th of Anne is verbatim, except in that act after the word dice, the words "tables, tennis-bowls," are inserted, but the sense is the same. Laws of Me. ch. 28. And in either act, if the securities be of real estate, they The act of enure to the use of the persons they would, if the mortgagor, N. York, &c. were dead. By the second section of our act, any person losing money or property, as above, and having paid, may in assumpsit &c., to be brought in three months, recover it back, or damages; and if he do not bona fide sue in that time, any other person may sue for, and recover treble the amount, with costs in either case, &c. By the third section, the winner may be indicted, and punished criminally &c. Like acts in most of our states, copied from said English act. VOL 1. 88 against gaming was also copied nearly from the Anne, c.14. English act, 9 Сн. 34. 2 Wils. 309, Goodburn v. By the fourth section, the loser may recover on his own oath, unless the winner will swear to the contrary, and if he will, he recovers costs; but the plt. may, if he choose, proceed on common evidence. By the fifth section, gaming, &c. in taverns and licensed houses, is prohibited; and the remedy on this section is by indictment. The two acts of 9th Anne and of Massachusetts of March 4, 1786, are not alike, except in regard to the first section in each. The colony law of 1646, also, forbids dancing in tav erns. ART. 2. Questions and cases on the said first section. The questions may be ranked in two classes: First, What is a game within the provision? Second, What kind of contracts are void? § 1. What other game or games. It was decided in this case, that horse-racing was within the words of the 9th of Anne, ch. 14; and that monies betted and won therein, could not be recovered in assumpsit, brought upon a wager of 14 guineas to 8, by the plt. with the deft. on two races to be run by two horses; and as the wager was void as to the 14 guineas, being above £10, so the court held Longbotham. it was void as to the 8 guineas. And the court said, "they --1 Wils. 220. ought to extend the 9th of Anne to prevent excessive betting upon all sports, as well as games; and that although horseracing is not mentioned in that statute, yet it is within the general words, other game or games." 2 Bos. & P. 130, Shirley v. Sankey. Cowp. 281, Jeffreys v. Salk. 344, St. Leger. 2. So a foot race is a game within the act; and it makes no difference if the race is against time, and by one person alone. The bets or wagers were, if A could run so far in such a time. The wager having been paid, the action was brought to recover back the money; and it was ruled that it must be laid and proved the third person was playing at a game called a foot race. It has been said that the statute of 16 Ch. II. ch. 7, names both horse and foot races; and that the 9th of Anne has reference to this act of Charles. So cricket is within the act, 2 Ch. Pl. 76. 3. But a wager concerning the right manner of playing, is not within the statute. As at backgammon, if one stir a man, a wager is laid, whether he is obliged to play it or not. The acts forbid gaming, not wagers as to the mode of gaming. § 4. At common law, playing at cards, dice, &c. innocent13, Walker v. ly practised as a recreation, was deemed lawful; but it has Walker.- been held that a general indebitatus assumpsit lies not for Smith v. money won at play, but that it lies against him who holds the 2 Bac. Abr. 619-5 Mod. 6 Mod. 128, Aury. Same 3 Salk. 14-3 Salk. 175, wager. But it was decided that for money so won, special assumpsit lies; for there is no debt or consideration-no quid pro quo; but only promises on which neither debt nor indebitatus lies. 2 Ld. Raym. 1034; 1 Ld. Raym. 69, Bovy v. Castleman. v. Cн. 34. Art. 3. 5. Assumpsit for a bet; and held that betting at a horse- 2 Bl. R. 706, race to above £10, is within the 9th of Anne; and if the bet 708, Clayton be illegal on one side, and legal on the other, neither can be ". Jennings. recovered for want of mutuality. A voidable contract, as an infant's &c. may be the consideration of another contract, but not a void one. ART. 3. What contracts as to gaming are void or not. It is to be observed (however difficult it may be to see the reason) that the Massachusetts act, as well as the 9th of Anne, makes the security only, and not the contract, void. 2 Burr. 1077, 1088, Robin 1 W. BI. 234. 1. This was assumpsit on a bill of exchange drawn at Paris by Bland, on himself, in England, for £672, payable to son v. Bland. the plt. 2d count for £700 lent and advanced; 3d for £700 Same case, monies had and received. Plea, the general issue. This bill was drawn for £300, the plt at Paris lent to Bland, at the time and place of play; and for £372 more lost at the same time and place, by Bland to the plt. at play-the play was In this case the court decided, fair. First. That the bill must be governed by the laws of England, where it was to be paid by the drawer himself, being drawee. 2. Second. That the bill was a security, and void, being for a gaming debt, and the consideration examinable. 3. Third. That no action lay for the £372 won; as to that the contract is void. $4. Fourth. The plt. recovered the £300 lent as above, as being entitled to it, by the laws of England and France; and interest from the time the bill became payable. § 5. Fifth. Also held that the security being void, this might be pleaded or given in evidence. 2 Bos. & P. New. R. 415, 416, Vaughan v. Whitcomb. v. Hall. The statute does not avoid the contract. As where the plt. rode his mare to the deft's. and proposed to him to toss up for her against two horses of the deft. This was done, the mare then being in the deft's. stable, and he won; and the plt. -2 Wils. 309. said she was fairly won, and returned home, leaving her in the Alcinbrook deft's. possession, where she remained to the time of the trial. She was worth £25. The action was not brought till above three months after the tossing up. Judgment for the deft., and the court said there was no clause in the act that avoided the contract. It is only liable to be defeated sub modo; for which purpose the plt. must bring his action in a limited time; the plt. is too late. There appeared to be no doubt but that this was gaming within the acts. CH. 34. 6. It was further decided in Robinson v. Bland, that, Sixth. There is a distinction between the contract and security. "If part of the contract arise on a good consideration and part 2 Burr. 1077, on a bad one, it it divisible; but it is otherwise as to the secuity; that, being entire, is bad for the whole hence, Robinson v. Rawden v. 1 Salk. 344, Mod. 97, the same case. 5 Mod. 170, 178, pleas at large. 2 Stra. 1155. Bower v. Brampton, 26. §7. Seventh. Though the security was void, the contract remained, and the plt. might recover the money lent-the legal part. 8. Eighth. A distinction was taken between monies lent to play with, and monies lent at the time and place of play. The purpose in the first case is bad, but may not be so in the last. Quære, as it appeared to the court that the plt. took a bill, an express written contract, for the £300 lent, and that was void, how, on the many late authorities, could he resort to his legal or implied assumpsit, when it was proved a written contract existed? 9. In this case it was decided, that if money be won at play, and a bill be drawn and accepted for it, the winner shall not have an action against the acceptor; but the innocent endorsee may. This was the law formerly, but the law is now altered, therefore, § 10. It was held in a later case, that where a promissory note was given for money lent to the deft. knowingly to game cited 1 Esp. with, by one Church, who endorsed the note to the plt for a valuable consideration, it could not be recovered, the 9th of Anne having made the security void. So are the late cases; for where a statute expressly declares a security null and void, as this gaming act, or the statute of usury does, the decisions thereon, in late cases, have been uniform, that the security is void in the hands of an innocent endorsee; for where the security is made actually void by statute law, the endorsing it over can never give it a new binding force. Dougl. 636, 639, Lowe v. Walker. 2 Stra. 1243, Barjeau v. Walmsley. 12 Mod. 258, Walker v. Walker. 11. In this case the plt. and deft. gamed together at tossing up for five guineas a time. The plt. won all the deft's. ready money, then lent him ten guineas a time till he had borrowed 120. Ruled, that this was not a case within the 9th of Anne, for the word contract is not in the act, and securities in it must mean lasting liens on the estate. Judgment for the plt. on the contract, not on the security; but contrary to the 8th rule above in one respect was this decision, for the money was lent to play with, not merely at the time and place of play. 12. It has been adjudged, that on special mutual promises actions will lie for money won at play. This must be on the above distinction between contracts and securities, the last being void by the act, not the first. CH. 34. Art. 3. 13. If the plt. lose money at play and pay it to deft., and do not sue to recover in the time prescribed by the act, he never can recover it back, for the plt. is particeps criminis, both parties are equally in the wrong, and then the rule ap- Pow. on Con. plies, melior est conditio possidentis. So was the Roman law. 201-2 Burr. The rule of that law was, that if an agreement be dishonest, Dig. lib. 12, both in respect to him that gives and him who receives, the tit. 5. first cannot require any thing again, because in this case the possessor has the advantage. 1012. § 14. So money paid on a gaming policy cannot be recov- Dougl. 468, ered back on the same principles. So a bribe paid cannot be Lowry v. recovered back, for both parties are equally criminal. Bourdieu Pow. on Con. enacted 1805, 15. The new French code generally, disallows any ac- 203. tion aleatoire or contingent; or when the advantages or losses The French either for all parties, or some one or more among them de- Civil Code pend on an uncertain event, though it allows an action to Book 3, title' enforce the contracts of insurance and bottomry, and as to 19. annuities and bets, as to acts of dexterity and exercises. It does not allow actions to enforce generally gaming or wager contracts, and one good reason given is, that they lead men to trust in chance or fortune, and to neglect industry; and another, that they lead men to seek their own gain in the losses cf others, and without any object useful to any party. But a gaming debt or wager actually paid, cannot be recovered back, if there be no fraud, overreaching, or unfair play. Here the old rule seems to be applied; that is, when the parties are in pari, the right of the possessor is the best. 16. Assumpsit to run a horse at such time as the plt. shall 3 Salk 345, appoint, and he states he appointed a certain day named, and Scott v. Hogheld good. son. § 17. Leave given to compound a prosecution for gaming. 1 Wils. 180. Prosecution was on the statute. -7 D & E. 18. The action of debt given to the loser of money at 2 Stra. 1079. play, by 9 Anne, c. 14, is given on the ground of contract, not 257, Bristow by way of penalty. And hence the deft. may be holden to v. James.— bail; and deft. may plead in abatement, that the money was due from others not named, as well as from the deft. Hence also, right to sue is transmissible to the assignees of a bankrupt. 2 Hen. Bl. 308, Brandon v. Pate. 19. Form of declaring &c. The form. A declaration in 4 Johns. R. assumpsit is given by the statute only to the party losing, but 193, 199, Cole q. t. v. 13, s. 6. it gives no form of declaring, where a common informer sues, Smith. See and in an action founded on the statute the plt. must state Ch. 137, a. specially the cause of action arising under it. There is no contract or privity between such informer and the offender; see the case of Frederick v. Lookup, 4 Burr. 2018, 2022; the |