Applegarth v Colley
| Jurisdiction | England & Wales |
| Judgment Date | 09 December 1842 |
| Date | 09 December 1842 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 663
EXCH. OF PLEAS.
S. C. 2 Dowl. (N. S.) 223; 12 L. J. Ex. 34; 7 Jur. 18. Referred to, Jenks v. Turpin, 1884, 13 Q. B. D. 519; Moulis v. Owen, [1907] 1 K. B. 751; Hyams v. Stuart King, [1908] 2 K. B. 714.
applegarth. T.' colley. Exch. of Pleas. Dec. 9, 1842.-Since the repeal of the stat. 13 Geo. 2, c. 19, a horse-race for money given by third persons, by way of prize, is not illegal.-The stat. 16, Car. 2, c. 7, does not prohibit all gaming, but only such as is fraudulent or excessive.-A horse-race for a sweepstakes of '2 each is not within the 2nd section of the 9 Anne, c. 14, nor, as it seems, within the 5th section ; there not being any loser to the amount of 10.-Semble, that by the a.tat. 9 Anne, c. 14; not only the security given for a gaming debt, but (a) In another similar case against another member of the same company, (Stewart v. Hills), a plea similar in substance to the second plea in this case was pleaded, but in abatement instead of in bar, and the Court on this ground gave judgment for the plaintiff. 664 APPLKGARTB V. COLLEY 10M.&W.7Z4. the contract itself, was avoided ; but at all events this must be taken to be the case since the stat. 5 & (] Will. 4, c. 41. [$. C. 2 Dowl. (N. S.) '223 ; 12 L. J. Ex. 34 ; 7 Jur. 18. Referred to, Jeiiks v. Twrpin, 1884, 13 CJ. B. D. 510; Mxifc v. Owe*, [1907] 1 K. B. 751 ; Hymns v. simm^ Km0, [1908] 2 K. B. 714.] Debt, in the sum of 50, for money had and received by the defendant to the use of the plaintiff. Plea, as to tlie sum of 271. ok. 6cl, parcel &c., that before the receiving of that sum by the defendant, a race over a fair hunting country, for a certain sweepstakes, to wit, two sovereigns each, with a certain sum of money, to wit, fifteen sovereigns, added, was about to be run by a mare of the plaintiff and divers horses of other persons ; that before the said race, the said sweepstakes of two sovereigns each and fifteen sovereigns added, being the prize for which the said race was to be run, and being a less sum than 501,, was deposited with the defendant, to be by him paid over to the winner of the said race ; that the said race was run, and the plaintiff's nuire became the winner thereof ; and that the said sura of 271. Os. Gd. was received by the defendant for the purpose hereinbefore mentioned, and not otherwise. Verification. Special demurrer, assigning for causes, that it did not appear by the plea that the said money was deposited, or1 the said race won as therein mentioned, before the 23rd [724] day of March, 1840, [the day on which the statute 3 Viet. c. 5 passed]; or that money was deposited by any person to the amount of 101.; or that the said money consisted of any wager or stake deposited to the amount of 101.; or that any person lost money to that amount ; or that the said nice was contrary to any statute. Joinder in demurrer. Tbe case was argued on the 6th of December, by Martin, in support of the demurrer. This plea is no answer to the action. There is nothing in any statute relating to horse-racing which makes the transaction set forth in the plea illegal. The third section of the statute 13 Geo. 2, c. 19, (relating to the weights to be carried by racehorses), was repealed by [the 18 Cleo. 2, c. 34, s. 11 ; and the other provisions of the same statute have been repealed by the 3 Viet. c. 5, which passed before the commencement of this action. The question, therefore is, whether either the statute 16 Gar. 2, c. 7, or the 9 Anne, c. 14, relating to gaming generally, applies to the present case. Now the second section of the 16 Car. 2, c. 7, applies only to fraudulent gaming, being directed against persons who shall " by any fraud, shift, cosenage, circumvention, deceit, or unlawful device or ill practice whatsoever," in playing at or betting on cards and other games therein mentioned (of which horse-racing is one), win any sum of money or other valuable thing whatsoever. And the third section is especially directed to the prevention of excessive and immoderate gaming, whereby above 1001. are lost at any one time or meeting "upon ticket or credit, or otherwise;" in which case the loser is not to bo compellahle to make it good, and the contract and all securities for payment are declared void. The notion upon which that section was framed appears to have been, that there would be less danger of excessive and immoderate gaming, if parties were thus prevented from losing more money than they had about them at the time. Then the statute 9 Anne, [725] c. 14, s. 2, enacts, that any person " who shall at any time or sitting, by play-iiig at cards, dice, tables, or other game or games whatsoever, or by betting on the sides or hands of such as do play at any of the games aforesaid, lose to atiy one or more person: or persons so playing or betting in the whole the sum or value of 101., afid shall pay or deliver the same or any part thereof," may within three months sue fir and recover it back from the winner in an action of debt; and in case of his not suing within that period, a right of action for treble the value is given to the common informer. The object of this section was in effect to reduce the sum of 1001. mentioned in the 16 Car. 2, c. 7, s. 3, to 101. But a debt for money...
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