Gaming, the playing together of two or more persons at some game, whereby one shall lose and the other win money or other property staked upon the issue. The game may be one of chance, as that of faro or a game with dice, or one of skill only, as chess, or of skill and chance together, as whist or backgammon. There is nothing immoral in playing for mere amusement; but if money be staked, it becomes easily, and perhaps necessarily, a sport carried on for the sake of the money in a greater or less degree, and then most moralists have agreed that it deserves reprobation. When this is carried to an extreme degree, and important sums are played for, it is obviously wrong, and deemed so to be universally. But the common law never interfered with gaming, by any kind of prohibition or restraint, so long as there was no fraud. If there was fraud, it operated here as it does elsewhere in law; it avoided all contracts, and money paid in fraud could be recovered back, because no title passed to the payee. And if one cheated at gaming, as by false cards, dice, or other implements, or indeed in any way, he might be indicted as a cheat at common law.
Both in England and in the various states of the Union, statutes have been passed for the prohibition or restraining of gaming, or, as it is as commonly called, gambling. Here, all gambling, that is, all playing for money, is prohibited, and therefore it is held that one cannot recover back money lost at play, because the playing itself is illegal; and it makes no difference whether the playing was honest or cheating. But a loser may recover his money from a stakeholder, by demanding it from him before he pays it over to the winner. It has been held in Indiana that winning any sum of money, however small, at cards, is an indictable offence; and in Tennessee the common form of lottery called "gift enterprises," in which the purchaser of an article is entitled to the chance of winning a prize, has been held to be gaming and indictable. But it has been said in New York, that playing to see who shall pay for the use of the implements, as a billiard table, is not gambling.