Now it had always been supposed that the legality of horse-races depended on the 13 Geo. II., and that the Act of the 18th of the same reign was a subsidiary Act, and had merely the effect of taking off restrictions as to weight. And many persons therefore thought that the Act of 3 Vict. *c. 5, instead of effecting the object of the Legislature by protecting horseraces, had repealed the only enactment by which they were supported, so that they had been thrown back into the class of games comprised within the statute of Anne, and would be illegal if for a larger stake than £10. At length the question arose, and was argued in a case of Evans v. Pratt (g) in which the Court of Common Pleas decided that the words of the 11th section of the 18 Geo. II., c. 34, were large enough to legalize all horse-races for stakes of £50 and upwards. Such races are therefore legal, and it is settled (h) that a race for £25 a side is a race for £50.
These statutes and cases were reviewed at great length in the case of Applegarth v. Colley (i), which decided that a horse-race for a sweepstakes for £2 each was not illegal, although the total amount subscribed and run for amounted to less than £50, inasmuch as neither the statute of Charles (it being a ready money payment) nor the statute of Anne applied to a "race for a sum of money not raised by the parties themselves (that being, in truth, a wager), but given by way of prize by a third person desirous of encouraging racing."
But though a race for £50 was thus legalised, a bet on such a race was not so, for it was *decided (k) that a person betting even on a legal horse-race is in the same situation as if he had betted upon any other game.
(g) 11 L. J. (C. P.) 87; 3 M. & G. (42 E. C. L. E.) 759; and see Bentinck v. Connop, 5 Q. B. (48 E. C. L. R.) 693. (h) Bidmead v. Gale, 4 Burr. 2432. (i) 10 M. & W. 723. (A) Sliillito v. Theed, 7 Bing. (20 E. C. L. R.) 405.
Now there is one point not perhaps precisely forming part of, but strongly bearing on this subject, and of which I must here warn you. When I speak of the statutes of Charles and Anne as rendering bets of a greater amount than £10 recoverable back from the winner, and rendering all securities for bets void, you must understand me to speak of bets on persons gaming; for the words of the former statute are, by "playing at the games or betting on the players," and of the latter and more important one, "betting on the sides of such as game at any of the aforesaid games." All wagers, therefore, were not affected by these statutes, but only wagers upon games." Now a foot-race was held to be a game within these Acts (I), as also was a dog-race (m). So were cards, dice, tennis, bowls, for they are mentioned in the Acts; and so was cricket, though not specified (n); not that there was anything illegal in these amusements themselves, but that the law would not allow the winner of £10 or upwards to receive or retain his winnings, nor would it allow any security for any winnings at them to be enforced. But as *to wagers not made upon games within the meaning of these Acts of Parliament, if there was nothing illegal or opposed to public policy in the subject-matter of the wager, it was held that there was no statute which affected its validity. This was decided in the famous case of Good v. Elliott (o), in which the wager, whether a particular person had, before a particular day, bought a waggon,
(l) Lynall v. Longbotham, 2 Wils. 36. (m) Daintree v. Hutchinson, 10 M. & W. 85. (n) Hodson v. Terrill, 3 Tyr. 929; 1 C. & M. 797.
(o) 3 T. E. 693; and see Hussey v. Crickitt, 3 Camp. 168; Jones v Randall, Cowp. 37; Evans v. Jones, 5 M. & W. 82. 286 was held legal, and the winner allowed to recover against the loser in an action, by three judges, contrary to the opinion of Mr. J. Butter, who advocated the view which probably would have been most consistent with sound policy-namely, that the Courts should refuse to occupy their own time and that of the public by trying such questions.
Such, then, being the state of the law as to gaming and wagering, in 1845 stat. 8 & 9 Vict., c. 109 was passed, of which s. 15 repeals 16 Car. II., c. 7, and so much of 9 Anne, c. 14, as was not altered by stat. 5 & 6 Will. IV., c. 41 (which Act will be referred to in the next lecture); and s. 18 of which enacts "that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable *thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made; provided always that this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise."
It is clear, that, at common law, contracts by way of gaming or wagering were not, as such, unlawful (p).1
(p) Thackoorseydass v. Dhondmull, 6 Moo. (P. C.) 300; Hampden v. Walsh, 1 Q. B. D. 189; 45 L. J. (Q. B., etc.) 238.
1 By the common law, wagers were valid : Good v. Elliott, 3 T. R. 693, and cases cited supra; Campbell v. Richardson, 10 Johns. 406; Haskett v. Wootan, 1 N. & McC. 180; Clark v. Gibson, 12 N. H. 386; Ball v. Gilbert, 12 Metc. 397; Scott v. Duffy, 14 Pa. St. 18; except so far as contrary, 1. To public policy, or 2. To private characters or feelings. The former ground renders invalid all statutes on the subject of gaming, any enactment remains, except 6 Will. IV., c. 41, s. 1, hereafter mentioned, whereby they are rendered illegal (q).
Their illegality depends upon statute law, and after numerous alterations, it does not seem, that, in the many wagers on the result of an election : Allen v. Hearn, 1 T. R. 56; Ball v. Gilbert, supra; Rust v. Gott, 9 Cow. 169: Wheeler v. Spencer, 15 Conn. 28; Lloyd v. Leisenring, 7 Watts, 294; Wagonseller v. Snyder, lb. 343; Wroth v. Johnson, 4 Harr. & M'Hen. 284; Gardner v. Nolen, 3 Hairing. 420; Laval v. Myers, 1 Bai. 486; Duncan v. Cox, 6 Blackf. 270; on the acquittal or discharge of a prisoner: Evans v. Jones, 5 M. & W. 77; on the result of a prize fight: Hunt v. Bell, 1 Bing. (8 E. C. L. R.) 1; McKeon v. Caherty, 1 Hall, 300; in restraint of marriage: Hartley v. Rice, 10 East, 22, and the like. The second ground renders invalid, wagers as to whether an unmarried woman would have a child by a certain day: Dichurn v. Goldsmith, 4 Camp. 152; as to the sex of a third person: Da Costa v. Jones, Cowp. 729 (which was the well-known case as to the sex of the Chevalier D'Eon); as to the life of a human being: Phillips v. Ives, 1 Rawle, 37; and perhaps as to the solvency of a third person : Thornton v. Thackray, 2 Y. & Jerv. 156.