The later English cases were, however, cited with approbation, and followed in Perkins v. Savage, 15 Wend. 418; Branch Bank v. Crocheron, 5 Ala. 256; Wooten v. Miller, 7 Sm. & M. 386, and Duncan v. Cox, 6 Blackf. 270.-r.
See also Green v. Collins, 3 Cliff. 494; Brunswick v. Valleau, 50 Iowa, 120, Wilson v. Stratton, 47 Me. 120; Savage v. Mallory, 4 Allen, 492; Walan v. Kerby, 99 Mass. 1; Adams v. Couillard, 102 Mass. 167; Walker v. Jefleries, 45 Miss. 160; Rindskopf v. De Ruyter, 39 Mich. 1; Hill v. Spear, 50 N. H.
The first (c) example to which I shall advert arise3 on contracts by way of gaming or wagering, and which now are void and not illegal (d). The Acts against Gaming were formerly exceedingly complex and troublesome; but the law has been much simplified by stat. 8 & 9 Vict. c. 109.
Before the passing of that statute the first Act to be noticed was that of 16 Car. II. c. 7, s. 3 of which enacted that if any one should play at any pastime or game, by gaming or betting upon those who game, and should lose more than the sum of £100 on credit, he should not be bound to pay, and any contract to do so should be void.
The 9th Anne, c. 14 (the principal enactment), provided in sect. 1, that all securities for money or any other valuable thing won by gaming or playing at cards, dice, tables, bowls, or other game *whatever, or by betting on those who game, or for money lent for such gaming or betting, or lent to gamesters at the place where they are playing, shall be void.
And the 2nd section exacted that any person who shall at a sitting lose the sum or value of £10 might recover back again within three months; and if he did not, any other person might, together with treble the value-half for himself, and half for the poor of the parish.
(c) In the earlier editions the first example was that of contracts void by usury, but the usury laws having been swept away (see per Kindersley, V. C, in Bond v. Bell, 27 L. J. (Ch.) 233, 235) by 17 & 18 Vict. c. 90, which came into force on the 10th Aug., 1854, it seems undesirable to mention them further here.
(d)Beeston v. Beeston, 1 Ex. D. 13; 45 L.J. (Q. B., etc.) 230; Read v. Anderson, 10 Q. B. D. 100; 52 L. J. (Q. B.) 214.
253; Schermerhorn v. Talman, 4 Kern. 93; Powell v. Smith, 66 N. C. 401; Williams v. Carr, 80 lb. 294; Wallace v. Lark, 12 S. C. 576; Henderson v. Waggoner, 2 Lea, 133; Kottwitz v. Alexander, 34 Tex. 689; Gaylord V. Soragen, 32 Vt. 110.
Now you will observe that under these two Acts securities for money lost at gaming, or by betting on the gamesters, or for money lent to them to game with, were illegal.
And you will further observe that, even if no security were given, but the loser paid in cash, still, if the sum lost amounted to £10, it might be recovered back again (e).
Now a horse-race is a game within the meaning of these Acts of Parliament, as you will find laid down in several cases (f); and therefore, if the law rested upon these statutes, all losses above £10 on any such race would be recoverable back by the loser, and would put the winner in danger of the penalties of the statute of Anne, and securities for *the payment of any such losses would be void. But it was thought that horse-racing, confined within due limits, had a tendency to improve the breed of horses, and thereby promote the interests of the country at large. Acts of Parliament were therefore passed, providing for this particular object, and excepting such races, to a certain extent, from the provisions of the Gaming Acts. This was first done by stat. 13 Geo. II., c. 19, which legalized matches run at Newmarket, or Black Hambleton, or for the sum of £50 and upwards. But this statute imposed certain restrictions as to the weights which the horses were to carry, which it seemed expedient to repeal; and for that purpose was passed 18 Geo. II., c.
(e) You may consult, on the construction of these Acts, Sigel v. Jebb, 3 Stark. (3 E. C. L. R.) 1; Brogden v. Marriott, 3 Bing. N. C. (32 E. C. L. R.) 88; and M'Kinnell v. Robinson, 3 M. & W. 434.
(f) Goodburn v. Marley, Str. 1159; Blaxton v. Pye, 2 Wils. 309; and Brogden v. Marriott, 3 Bing. N. C. (32 E. C. L. R.) 88.
34, s. 11, which, after reciting the restriction of the former statute as to weights, enacts that it shall be lawful for any person to run any match, or to start and run for any plate, prize, sum of money, or other thing of the value of fifty pounds or upwards, at any weights whatever, in the same manner as if the Act of the loth of Geo. II. had never been made.
This Act, you will at once see, was made merely to take away the restrictions with regard to weight, which had been imposed by the 18th of Geo. II.; but though that was its object, by one of those strange accidents which are so common in the history of law, the legality of all horse-racing came to depend upon it.
*In the 1st section of the loth of Geo. II. there was a very strange and unaccountable enactment. It enacted that no person should start more than one horse for the same plate; and that, if he did, all the horses entered by him, except the first, should be forfeited, and recovered by information or action at the suit of a common informer. The law regarding racing, mixed up as it was with the other Gaming Acts, being extremely complex, this portion of it was probably forgotten, and certainly was not universally acted upon, when suddenly, in the years 1889 and 1840, informations were filed for the purpose of recovering several valuable race-horses which had been entered by their owners, along with other horses their property, for the same stakes, in total ignorance of the prohibition of the Act of Parliament.
As soon as this was represented to the Legislature, it interfered for the protection of the defendants, and passed the 3 Vict. c. 5; but the Act, I presume, inadvertently, instead of repealing so much of the 13 Geo. II. as inflicted penalties, repealed that Act altogether so far as it related to horse-races.