
    CONSTITUTIONAL COURT, COLUMBIA,
    NOV. 1807.
    Barret v. H. P. Hampton.
    A wager on a horse race for twenty dollars, was adjudged not to be illegal* the contract being fair.
    Where no deceit is practiced, the contract on the event of a horse race, is allowable by the common law; and the statutes against gaming do not forbid fair gaming for any sum not exceeding £10 sterling at one sitting, or impair the obligation of the contract. But all securities taken for a gaming consideration are void, by statute law, for money won or lent; and all contracts on a gaming consideration for money won or lost above £100, are void by stat. Car. 2. The stat. of Ann. does not prohibit the recovery of money won, under £10.
    Summary process, brought to trial before Bat, J., in Lexington district. The plaintiff proved that he made a wager with the defendant on a horse race, for twenty dollars, and that he won. It did not appear that any money was staked. This action was brought to recover the twenty dollars so won..
    On the part of the defendant, the laws against gaming were ob. jected, and the presiding judge decreed in favor of the defendant.
    The motion in this court was to set aside the decree, and grane a new trial.
    Hooker, for the plaintiff,
    contended, that wagers are not in them• selves unlawful. That statutes made of force here, and our acts of assembly, have in view deceitful, and excessive gaming, and not fair and moderate gaming, which is still innocent and lawful. That the stat. 16, c. 2, c. 6, subjects whoever shall win by fraud, in playing at cards, or by horse races, or other pastimes, or by bearing a part in the wager, or by betting on the sides, any sum of money, or other valuable thing, to forfeit treble the value; and to prevent excessive gaming, if any one shall play at any of the said games, or any other pastime, other than for ready money, or shall bet on the sides, and shall lose exceeding £100 at one time, or meeting, on credit, or otherwise, and shall not pay down, he shall not be bound to pay the same ; but the contract, and all securities, for the same, and every part thereof, shall be utterly void. P. L, 78. That by this statute excessive gaming, which is defined to be where money, of any valuable thing won, exceeds at one time, £100 sterling, is virtually declared to be unlawful. The stat. 9 Anne, e. 14, P. L. Appendix No. 1, 20, he said, might be considered as not of force 
      with us ; but, admitting it to be of force, it will not prevent a recovery in this action. That statute declares that all securities given, where the whole or any part of the consideration thereof, shall be for any money or other valuable thing won by playing at cards, or any game whatsoever, or by betting on the sides, or for reimbursing, or repaying any money knowingly lent for such gaming or betting at the time and place of such play, shall be utterly void. And that any one who shall at any time or silling, by playing at cards, or other game whatsoever, or by betting, lose the sum or value of £10 and pay the same, the person so losing may recover the same. Horse racing is not mentioned in this statute, but he admitted that it had been construed to be within the intent and meaning of it, being comprehended in the general expression, “ other game, or games, whatsoever.” The stat. of Ch. declares, th'at the contract and all securities shall be void. The stat. of Anne, declares, that all securities shall be void, but meddles not with the contract, which when fair, is good. The difference in wording the two statutes has produced a distinction between money lost at gaming, and money lent at the time and place of play. As to the first, the contract is void, as well as, the security, but as to the latter, the security only, is void; and the contract, if bona fide, remains valid. The stat. of Anne, by authorizing the loser to recover, by an action of debt, any sum obtained from him by gaming, whether deceitful or fair, above ten pounds sterling, at any one time, or sitting, must be admitted to have prohibited as unlawful, all wagers above that sum as excessive and mischievous ; if the subject of thefnare properly comprehended within the meaning of the words game, or games ; as horse races seem to be. The contract, or bett, for any sum under ten pounds, if the game be fair, cannot be regarded as illegal, and therefore, the court cannot refuse its aid to enforce the contract, or award damages to the party who is a sufferer by the breach of it. The act of assembly passed in February, 1791, declares, that ’all the securities shall be void, where any part of the consideration money, &c. won, &c. as in the statute of Anne, except that horse races are(mentioned particularly. j Swindling and fraudulent gaming are expressly forbidden as criminal and are punishable by indictment. But there is no provision, to authorize a recovery of money fairly won. at play, or to prohibit playing, or running races, for inoney, for any sum under £10.
    No One appeared to argue the case on the part of the defendant.
   "Wilds, J.,

delivered the opinion of the court, all the judges present, except Trezevamt, J. That the contract, being for twenty dollars, was. not within the statutes against gaming, there being n* Un^a‘rness *n transaction. That wagers were not illegal at com. mon law; and there being nothing in the statutes, or acts of assembly against gaming which can be construed to forbid betting at any game under £10, this wager for twenty dollars was lawful, and the decree erroneous.

Note. By the acts against gaming, ,all securities for money won, or lent, at gaming, are void. And all contracts for money won, or lost, at gaming, above £100, are void, by the stat. of Ch. 2. The stat. of Anne, and our acts of as. sembly say nothing about contracts for a gaming consideration. They only speak of securities, if money, or a thing of value, be lent for the purpose of gaming, and a security be taken for the same; although the security is void, ipso facto, yet the contract is good; and although the value should be above £100, it will be valid. Sir John Bland’s case. Burr.

To lose at any time, or sitting, at any game, above £10, is unlawful by the stat. 9 Ann., and the party losing may recover back money staked and lost. It seems, therefore, that the contract to pay any sum wagered at gaming, above £10, is illegal, and not obligatory. All contracts on a gaming consideration above that sum are void; but under that value they are good. Qu. ■ If the stat, of Anne be of force ? .

A special assumpsit lies for money won at gaming; for the contract is not un. lawful at common law, and the winner venturing his money is a sufficient con, sideration. But a general videbitatis assumpsit will not lie, for the contract is executory, and but a wager, which is but a collateral promise. 2 Bac. Abr, “ Gaming.” 1 Esp. Dig. 19. 1 Raym. 69. A wager is in general legal. 3 D. and E. 697. Assumpsit lies to recover money won at play under £10, if the play be fair. 1 Esp. Rep. 235. See Pow. on Contr. 219, 224. Money lent to play with, without security, may be recovered. 1 Esp. R. 18,19. ■ Mpnpy wpft pnder £10, may be recovered. 1 Esp. R. 235.

New trial granted.  