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CHAPTER THE THIRTY-SIXTH.

OF GAMING.

Playing at

cards, &c. as a recreation,

rate sums, is not any offence. But otherwise as to gaming.

It seems that by the common law, the playing at cards, dice, &c., when practised innocently and as a recreation, the better to fit a and for mode- person for business, is not at all unlawful, nor punishable as any sort of offence: but a person guilty of cheating, as by playing with false cards, dice, &c. may be indicted for it at common law, and fined and imprisoned according to the circumstances of the case, and heinousness of the offence. (u) We have seen that common gaming-houses are considered as nuisances in the eye of the law; (b) and that lotteries have been declared to be public nuisances, except as they may have been authorized by parliament. (c) And when the playing is, from the magnitude of the stake, excessive, and such as is now commonly understood by the term gaming, it is considered by the law as an offence, being in its consequences most mischievous to society. In most cases, however, the party is subjected only to pecuniary penalties, recoverable by information, or by summary or civil proceedings: but some offences may be mentioned, which, by statutable enactments, may be prosecuted by indictment. (d)

9 Ann. c. 14.

s. 5. Persons losing 101. at a sitting may

sue for it again; and if

the loser does

not sue, any other person may recover

the same, and

treble the value.

The statute 9 Ann. c. 14. s. 5. enacts, that any person who shall at any time or sitting, by playing 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 these games, lose to any one or more person or persons so playing or betting in the whole the sum or value of ten pounds, and shall pay the same, or any part thereof, he may sue for it again within three months, and recover it, with costs, by action of debt; and in case the loser shall not bona fide sue, any other person may sue for and recover the same, and treble the value thereof, with costs of suit, against the winner. (e) The

(a) 3 Bac. Abr. Gaming (A) 2 Roll. Abr. 78.

(b) Ante, 299.

(c) Ante, 304. And a late statute 42 Geo. 3. c. 119. declares all games or lotteries, called Little Goes, to be public nuisances, and provides for their suppression; and also imposes heavy penalties upon persons keeping offices, &c. not authorized by parlia

ment.

(d) As to the penalties imposed upon persons gaming, or keeping gaming houses, &c. and the proceedings for the recovery of them, see 1 Hawk P.C. c. 92. 3 Bac. Abr. Gaming. 2 Burn. Just. Gaming. 4 Blac. Com. 172, 173, 174, and the notes (10) (11), and the statutes 2 Geo. 2. c. 28. 12 Geo. 2. c. 28. 25 Geo. 2. c. 36. s. 5. and 16 Car. 2. c. 7.

(e) S. 2.

statute then further enacts, that "if any person or persons what- Any person by

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winning any
monies, &c.
or at any one
sitting win-
ning above
10%. shall for
feit five times

the value, and,
in case of such

ill practice be deemed infasuffer the punishment of perjury.

mous, and

soever do or shall, by any fraud or shift, cousenage, circumven- deceit, &c. tion, deceit, or unlawful device, or ill practice whatsoever, in playing at or with cards, dice, or any the games aforesaid, or in or by bearing a share or part in the stakes, wages, or adventures, or in or by betting on the sides or hands of such as do or "shall play as aforesaid, win, obtain, or acquire to him or themselves, or to any other or others, any sum or sums of money, or "other valuable thing or things whatsoever, or shall at any one "time or sitting win of any one or more person or persons whatsoever, above the sum or value of ten pounds, that then every person or persons so winning by such ill practice, as aforesaid, or winning at any one time or sitting above the said sum or "value of ten pounds, and being convicted of any of the said "offences, upon an indictment or information to be exhibited "against him or them for that purpose, shall forfeit five times the "value of the sum or sums of money, or other thing so won as "aforesaid; and in case of such ill practice as aforesaid, shall be "deemed infamous, and suffer such corporal punishment as in cases of wilful perjury; and such penalty to be recovered by "such person or persons as shall sue for the same by such action 66 as aforesaid."

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18 Geo. 2. c. 34. s. 8. Any ning or losing at any one

person win

time 10%., or within 24

hours 204,

may be in

dicted and fined five

times the va

By the 18 Geo. 2. c. 34. s. 8. "If any person shall win or lose "at play, or by betting, at any one time, the sum or value of ten pounds, or within the space of twenty-four hours, the sum or "value of twenty pounds, such person shall be liable to be "indicted for such offence within six months after it is com, "mitted, either before the justices of the King's Bench, assize, "gaol delivery, or great sessions; and being thereof legally con66 victed, shall be fined five times the value of the sum so won or "lost; which fine (after such charges as the court shall judge "reasonable allowed to the prosecutors and evidence out of the lue. same) shall go to the poor of the parish, or place where such "offence shall be committed." There is then a provision, that if Offender disany person so offending shall discover any other person so offend- covering any ing, so that such person be thereupon convicted, the person so to be disdiscovering shall be discharged and indemnified from all penalties, charged. if such person so discovering has not been before convicted thereof, and shall be admitted as an evidence to prove the same. (ƒ)

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other offender

tion of the statute of 9

It has been decided that a foot race, whether the race be upon a Cases upon given distance, or against a certain time, is a game prohibited by the construc9 Ann. c. 14. (g) And a wager that a person did not find within such a time a man who should carry on foot twenty-four stone Anne, c. 14. weight ten miles in fifteen hours has been holden to be within the same principle. (h) But where A. betted B. that one C. would not run four miles in twenty-one minutes, it was adjudged not to be within the statute, because as C. was not playing at such game, there could be no betting on his side within the statute; for C. might be running for his amusement, and not to win any bet. (i)

(f) 18 Geo. 2. c. 34. s. 9. And by s. 10. the act is not to repeal or invalidate the 9 Ann. c. 14.

36.

(h) Brown v. Beckley, Cowp. 282.
(i) Lynall v. Longbotham, 2 Wils.

g) Lynall v. Longbotham, 2 Wils.

36.

It has, however, been holden, that laying above ten pounds on a horse race is an illegal bet within the statute of Anne, on the ground that the statute ought to be extended to all sports as well as games, in order to prevent excessive betting. (k) And it has been determined, that a wager of ten pounds to five pounds upon a horse race is within this statute, although the race was for a legal plate. (1) Cricket also, it seems, is an unlawful game within this statute.(m) It has been determined also, that if two persons play at cards from Monday evening to Tuesday evening, without any interruption, except for an hour or two at dinner, and one of them win a balance of seventeen guineas, this is won at one sitting within the statute.(n)

It seems that if a loser prefer an indictment against a winner on this statute of Anne, and the grand jury find the bill, the court will not permit an information to be filed against the defendant, although the indictment was quashed, and, of course, the defendant never tried upon it; for the grand jury may find another bill for the same offence. (o)

It is also settled, that if a defendant be convicted on an information on this statute, the court can only give judgment quod convictus est, and cannot set a fine on the offender of five times the value, but that an action must be brought on the judgment to recover the penalty.(p) Upon the ground that the judgment of the court is only quod convictus est, and is to be the foundation of an action to recover the penalty, it was urged in a recent case, that it is necessary to prove the sum precisely as laid in the indictment: but Lord Ellenborough, C. J. was of opinion that although, if the prosecutor had averred in the indictment that the defendants had won any bills of exchange of a specified amount, the allegation must have been proved as laid; yet that since the sum only was averred, and that under a videlicet, the prosecutor was entitled to prove the winning of a smaller sum. (ç)

(k) 1 Hawk. P. C. c. 92. s. 52. Goodburn v. Marley, 2 Str. 1159. Blaxton v. Pye, 2 Wils. 309. And it has been holden, that a wager on a horse race for less than 507. cannot be recovered in an action: the 13 Geo. 2. c. 19. s. 2. having prohibited such races. Johnson v. Bann, 4 T. R. 1. and see Bidmead v. Gale, 4 Burr. 2432. And that a wager, though for more than 50%. that the plaintiff could perform a certain journey in a post-chaise and pair of horses in a given time, cannot be so recovered. Ximenes v. Jaques, 6 T. R. 499. Nor a like wager, that a single horse should go from A. to B. on the high road sooner than one of two other horses to be placed at any distance their owner should please; these being transactions prohibited by 16 Car. I. c. 7. s. 2. and 9 Anne, c. 14. and not legalized by 13 Geo. 2. c. 19.

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CHAPTER THE THIRTY-SEVENTH.

OF USURY AND ILLEGAL BROKERAGE.

orbitant in

It was anciently holden that the taking of any kind of considera- Usury a contion for the loan or forbearance of money was an offence of eccle- tract for exsiastical cognizance, punishable by severe censures and forfei- terest for the tures: (a) but this notion, which appears to have proceeded from a use of money. mistaken construction of some passages in the Mosaical law, (b) has long given way to the more reasonable doctrine that there is nothing improper in taking a moderate interest for the use of money. Any large and immoderate consideration for such use has, however, been justly deemed prejudicial to the welfare of society; and the contract to receive any such exorbitant increase is that which is now generally understood by the odious appellation of usury.

common law.

It seems that, at common law, no indictment for usury could be Offence at supported, unless it were of such an exorbitant kind as that taken by the Jews. Accordingly, it is laid down in the books, that usury, such as the Jews took, namely, forty per cent. per annum, or more, was an offence at common law; and that, upon conviction, the usurer forfeited his goods to the king, and his lands to the lord of the fee, but that no other usury was so prohibited. (c)

Different rates of interest have been established by different Offence by nations. In this country also they have been regulated by the statutes. Legislature; and have varied and decreased for two hundred years past, according as the quantity of specie in the kingdom has increased by accessions of trade, the introduction of paper credit, and other circumstances. By the statute 37 Hen. 8. c. 9. the rate of interest was fixed at 107. per cent. per annum, which the statute 13 Eliz. c. 8. confirmed; and ordained that all brokers should be guilty of a premunire who transacted any contracts for more, and that the securities themselves should be void. The statute 21 Jac. 1. c. 17. reduced interest to eight per cent.; and it having

(a) 1 Hawk. P. C. c. 82. s. 4.

(b) Exod. c. 22. v. 25. Levit. c. 25. v. 36, 37. Deuter. c. 23. v. 19, 20.; and see 1 Hawk. P. C. c. 82. s. 7. 2 Blac. Com. 455.

(c) 2 Roll. 800. 3 Inst. 151, 152. 6 Com. Dig. Usury, (A.) Anon. Hardr.

410. It is however stated that a very
eminent barrister, in the year 1814,
advised that, in a case of clear and
palpable usury, a party may be in-
dicted at common law. 2 Chit. Crim.
L. 549, note (ƒ)

12 Ann. st. 2. c. 16. s. 1.

enacts that no person shall take above 57. per cent. interest.

And that all

bonds, &c. for a greater in

terest shall be

void.

been lowered in 1650, during the usurpation, to six per cent., the same reduction was re-enacted after the restoration, by the 12 Car. 2. c. 13.; and now, by the statute 12 Ann. st. 2. c. 16. it is reduced to five per cent. A contract, therefore, to take more than five per cent. is at this time usurious, and by the statute of Anne totally void; besides which, the lender is made liable to the forfeiture of treble the money borrowed.

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This statute of Anne enacts, "That no person or persons what"soever, upon any contract, take, directly or indirectly, for loan "of any monies, wares, merchandize, or other commodities whatsoever, above the value of five pounds for the forbearance of one "hundred pounds for a year, and so after that rate for a greater 66 or lesser sum, or for a longer or shorter time;" and that all bonds, contracts, &c. whereby there shall be reserved or taken above the rate of five pounds in the hundred, as aforesaid, shall be utterly void; "and that all and every person or persons what"soever, which shall, upon any contract, take, accept, and receive, by way or means of any corrupt bargain, loan, exchange, "chevizance, shift, or interest of any wares, merchandizes, or "other thing or things whatsoever, or by any deceitful way or means, or by any covin, engine, or deceitful conveyance, for the for a year shall forbearing or giving day of payment for one whole year, of and "for their money or other thing, above the sum of five pounds "for the forbearing of one hundred pounds for a year, and so after "that rate for a greater or lesser sum, or for a longer or shorter 66 term, shall forfeit and lose for every such offence the treble "value of the monies, wares, merchandizes, and other things so "lent, bargained, exchanged, or shifted."

And that persons taking above 51. for the forbear

ance of 100%.

forfeit treble

the value of the monies,

&c.

S. 2. enacts that no scrivener, &c. shall take

above 5s. for 1007. for a

year for brokage, &c.; nor above 12d.

besides stamp duties for making or renewing any bond, &c.; on penalty of 201. and costs and

imprisonment

for 6 months.

As to an in

dictment being sustain

able upon this statute.

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The second section of this statute further enacts, "that all and "every scrivener and scriveners, broker and brokers, solicitor and "solictors, driver and drivers of bargains and contracts, who shall "take or receive, directly or indirectly, any sum or sums of money, or other reward or thing for brokage, soliciting, driving, "or procuring the loan, or forbearing of any sum or sums of 66 money, over and above the rate or value of five shillings for the "loan or forbearing of one hundred pounds for a year, and so "rateably, or above twelve pence, over and above the stamp "duties, for making or renewing of the bond or bill for loan, or "forbearing thereof, or for any counterbond or bill concerning "the same, shall forfeit for every such offence twenty pounds,

with costs of suit, and suffer imprisonment for half a year; the 66 one moiety of all which forfeitures to be to the queen's most ex"cellent majesty, her heirs and successors, and the other moiety "to him or them that will sue for the same in the same county "where the several offences are committed, and not elsewhere, by "action of debt, bill, plaint, or information, in which no essoign, "wager of law, or protection, shall be allowed."

The provisions of the 12 Car. 2. c. 13. were similar to those of the statute of Anne, which have been just cited, except that the rate of interest was fixed by them at six per cent; and it is reported to have been decided that no indictment would lie upon the statute of Car. 2., and that it was necessary for the party prosecuting to sue for the penalties in a penal action; as being the

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