
    Machir v. Moore.
    July Term, 1845,
    Lewisburg.
    (Absent Brooke, J.)
    Gaming — Loans for Gaming Purposes. — Money lent to be bet upon a presidential election, cannot be recovered by suit.
    This was an action of debt brought in the Circuit Superior Court of Law and Chancery for the county of Shenandoah, by Joseph S. Machir against Charles Moore, on a promissory note bearing date the 10th of August 1840, by which Moore bound himself to pay to Machir one thousand dollars in the next September or October, for so much money advanced for him by Machir, in a bet with Bushrod Taylor. The defendant pleaded nil debet, upon which plea issue was joined.
    On the trial of the cause, the Court, on the motion of the defendant, instructed the jury, “That if they believed from the evidence, that the promissory note in the declaration mentioned, was given by the defendant to the plaintiff, to reimburse the plaintiff for one thousand dollars loaned by the plaintiff to the defendant, at the time and place of making a bet upon the result of *the presidential election with one Bushrod Taylor, for the purpose of making the bet; that then the promissory note was void, frustrate, and of np effect; and they should find for the defendant.” There was a second instruction, only varying from the first, by adding “if the jury should believe that the defendant and Taylor were both voters qualified to .vote in the presidential election.” To the opinion of the Court giving the instructions, the plaintiff excepted; and the jury having found a verdict for the defendant, and the Court having given judgment upon it, the plaintiff obtained an appeal to .this. Court.
    Samuels, for the appellee.
    The statute 1 Rev.' Code, § 1, p. 561, obviously intended to annul all securities for wagers, between j:he parties to the wager; also to annul any security for money loaned by any person no.t a party to the wager, to a party making a wager, at the time and place of making the same.
    
      t A security for a “wager” is “utterly void, frustrate, and of none effect, to all intents and purposes, whatsoever.” So a security “for the reimbursing .or repaying any money knowingly lent or advanced,” “to any person or persons” “wagering,” “or that shall at such time and place so ‘wager,’ ” is “utterly void, frustrate, and of none effect, to all intents and purposes whatsoever.”
    I have given here an extract from the statute so far as it is applicable to “wagers,” excluding from the extract such portions of the statute as are applicable to wagers upon gaming, horse-racing, cock-fighting, or other sport or pastime.
    The second section was intended to annul conveyances of real or personal property made for satisfying or securing money won of, or lent for the purpose of wagering, to the party making the conveyance. The mere words of this section are comprehensive., enough to avoid any conveyance for satisfaction or security of money lent for any purpose; but taking the words in connexion *with . the subject of the statute, it only annuls conveyances for satisfaction or security of money won of or loaned to a party making a wager.
    I submit, therefore, that the Court below was clearly right in giving the first in7 struction. If the Court were right in giving the first instruction, it was also right in giving the second. If a loan be void when made to one not a qualified voter, it will be so if made under the same circumstances to one who is a qualified voter.
    The Court below, however, was justified in giving the second instruction, by grave considerations of public policy. In every election, each voter should be free from undue bias of every description at the moment of giving his vote; if, however, a voter has made a bet on the result of an election, his desire of gain ■ is at once arrayed against correct political morals. Whether the love of profit, or the duty to form an opinion from all the light that may be shed upon the subject up to the moment of giving the vote, will predominate. at that moment, must depend upon the integrity or intelligence of each voter. The Courts, however, acting upon general rules, have clearly and emphatically denounced such wagers as against public policy; as corrupt in themselves, and opening wide a door for corruption. See Allen v. Hearn, 1 T. R. 57; Bunn v. Riker,. 4 Johns. R. 426; Vis-cher v. Yates, 11 Johns. R. 23; Denniston v. Cook, 12 Johns. R. 376; Bansing v. Lansing, 8 Johns. R. .454. These decisions by the Supreme Court of New York, will no doubt be regarded as better authorities than some conflicting decisions of the Court of Errors, considering the constitution of the Courts respectively.
    Grattan, for the appellant.
    The first section of our act of assembly, 1 Rev. Code, ch. 147, p. 561, obviously embraces two classes of promises, agreeriiefits, notes, &c. The first relates to promises, &c., given for money *won, laid, or betted. The second relates to such promises, &c., given for money lent, or advanced to the person betting, gaming or wagering. To justify this instruction, it must be shewn that the note on which the action is founded, ,is embraced within the second class.
    The statute first avoids all promises, &c., where any part of the consideration thereof is for money, or other valuable thing won, laid or b’etted at cards, dice, &c., or at any horse-race, cock-fighting, or any other sport or pastime, or on any wager whatsoever. It next avoids all promises, &c., given “for the reimbursing or repaying any money knowingly lent or advanced, at the time and place of such play, horse-racing, cockfighting or other sport or pastime, to any person or persons so gaming, betting, or wagering,” &c. So far as the latter clause goes, it obviously refers to the same gaming, . horse-racing, cock-fighting or other sport or pastime, as - are ' intended in the first clause.. But the second clause omits the words “or any wager whatsoever,” which are found in the first. The first clause avoids all promises, &c., given on account of a wager b3 virtue of these words, and only by virtue of these words; for there are many cases sustaining actions on wagers since the statute of 9th Ann. ch. 14, in England, which avoids notes, &c., given on a gaming consideration as strongly as does our statute. See Jones v. Randall, Cowp. 22 or 27; De Costa v. Jones, 2 Cowp. 377 or Cowp. 729.
    But as I have said, these words are not found in the second clause of the statute; and there is nothing therefore in it to avoid notes, &c., given for money lent for the, purposes of a wager. It is true, the word “ wagering” is used in the second clause; but it is “so gaming, betting or wagering,” the word “so” confining the wagering to the wagering upon the play, horse-racing, cock-fighting, or other sport or pastime, before mentioned.
    *But it is said, that upon common law principles, the note upon which this suit is brought is void; and various cases are cited from the New York Reports to sustain this proposition. The cases above referred to, as also the cases cited by the counsel for the appellee shew, conclusively, that at common law an action may be maintained upon a wager. But the cases from New York seem to establish the doctrine, that upon principles of public policy, wagers upon elections are void. How far it is proper, as a general proposition, for courts of justice to determine what is public policy upon those subjects falling within the legislative province, but which have not been acted on by the Legislature, I will not stop to enquire. In Virginia, the statute shews, very plainly, that the Legislature has chosen to determine for itself what is public policy in relation to gaming and wagers; and has avoided all wagers whatever. But with the subject distinctly before it, the Legislature has not thought it public policy to permit a knave to pocket money which he has borrowed, because he has chosen to stake it on an election. Nor do any of these cases cited b3 the counsel for the appellee so decide. They are cases where the only question was, whether the parties to the wager could maintain an action to recover the money bet.
    
      
      See monographic note on “Gaming” appended to Neal v. Com., 22 Gratt. 917.
    
   By the Court.

The judgment is affirmed.  