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whose sentence was respited during the king's pleasure, and who, having received a pardon on condition of transportation for life, was afterwards found at large in Great Britain without lawful cause, should be referred to his original sentence. (a) In a subsequent case, where the prisoner, having been convicted of simple grand larceny, had received judgment of transportation to America for seven years, but had afterwards been pardoned, "on condition of transporting himself beyond the seas for the same term of years, within fourteen days from the day of his discharge, and of giving security so to do," and, upon giving the security required, had been discharged, but had not complied with the other part of the condition, by transporting himself, it was doubted whether he could be convicted of a capital felony in being found at large, without any lawful cause, before the expiration of the term, or whether he ought to be remitted to his former sentence. The former cases were cited as authorities that the prisoner's discharge was a lawful cause for his being at large, notwithstanding he had forfeited the recognizance of himself and his bail, by breaking the other part of the condition, in not transporting himself within the fourteen days: but one of the judges thought that, as the prisoner had not complied with the terms on which he was pardoned, he must be considered as having been at large without lawful authority, as soon as the fourteen days had expired. Another judge considered it as a doubtful question whether the non-performance of the condition had not rendered the whole pardon null and void: and he also thought that the offence with which the prisoner was charged was not within one of the statutes then relied upon, namely, the 16 Geo. 2, c. 15, because he had not agreed to transport himself to America; and that it was not within another statute, namely, 19 Geo. 3, c. 74, because that act related only to pardons granted to offenders who had been convicted of felonies by which they were excluded from clergy. (b)

(a) Madan's case, Old Bailey, 1780. 1 Leach, 223. In 1 Hawk. P. C. c. 47, tit. Return from Transportation, s. 23, (referring to Cas. C. L. 197) this case is cited as having decided that the prisoner was so referred back to his original sentence, on his being indicted for returning from transportation, and acquitted. But in the report in Leach, it is said that no indictment was ever preferred against the prisoner for the new felony; but that, being in custody, a notice was served upon him to shew cause why execution should not be awarded against him on his former sentence: that after this notice he was put to the bar, and bis identity and the record of his former conviction proved; and he not being prepared to prove the truth of certain facts alleged in his defence, the Court gave their opinion that, as he had broken the condition of the pardon, he remained in the same state in which he was at the time the pardon was granted, viz., under sentence of death, with a respite of that sentence during his Majesty's pleasure. The report further states, that afterwards it was sub

mitted to the judges, whether the prisoner would not have been liable to suffer death without benefit of clergy, if he had been indicted and convicted under a statute then existing, namely, the 8 Geo. 3, c. 15, or whether he had been properly referred to his original sentence. No opinion of the judges is stated: but it appears, that at the Old Bailey, April Sess. 1782, the prisoner was informed by the Court that it was his Majesty's pleasure that he should be transported to Africa for life.

(b) Aickle's case, Old Bailey, 1785, cor. Gould, J., Hotham, B., and Adair, Recorder. The Recorder thought, that the indictment was perfectly supported under the clause of the 16 Geo. 2, c. 15, adopted by 19 Geo. 3, c. 74, which made it a capital felony to be found at large in Great Britain within the term for which a convict, who was liable to be transported to America, had received sentence to be transported beyond the seas. But he thought, that when the condition of the king's pardon was broken, the pardon was gone. There being, however, a difference of opi

Poverty and ill health amount to a lawful excuse

for not having

quitted the kingdom.

In the last-mentioned case, one point was clearly agreed upon, namely, that as the prisoner had, at the time of his discharge, a real intention to quit the kingdom within the time, but had been prevented from carrying it into execution by the distress of poverty and ill health, these impediments amounted to a lawful excuse. (c)

nion, it was intended to have submitted
the case to the opinion of the twelve
judges, if the prisoner had been found

guilty.

(c) Aickle's case, 1 Leach, 396; and see Thorpe's case, id. ibid. note (a).

CHAPTER THE THIRTY-SIXTH.

OF GAMING.

Playing at cards, &c., as and for moderate sums, is

a recreation,

offence. But

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 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 not any fined and imprisoned according to the circumstances of the case, otherwise as to and heinousness of the offence. (a) 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)

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The 9 Anne, 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 statute then further enacts, that "if any person or persons whatsoever do or shall, by any fraud or shift, cousenage, circumvention, 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,

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other illegal lotteries.

(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. Bac.
Abr. tit. Gaming. Burn's Just. tit. 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. 35, s. 5,
and 16 Car. 2. c. 2.
(e) Sec. 2.

9

Anne, c. 14, 5. Persons losing 101. at

s.

a sitting may

sue for it again.

Any person by deceit, &c., winning any or at any one

monies, &c.,

above 101.,

shall forfeit five times the value, &c.

sitting winning 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 as aforesaid."

18 Geo. 2,

c. 34, s. 8. Any person winning or losing at any one time 107, or within 24

be indicted

and fined five times the value.

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 committed, either before the jushours 202, may tices of the King's Bench, assize, gaol delivery, or great sessions; and being thereof legally convicted, 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 same) shall go to the poor of the parish, or place where such offence shall be committed." There is then a provision, that if other offender any person so offending shall discover any other person so offending, so that such person be thereupon convicted, the person so discovering shall be discharged and indemnified from all penalties, if such person so discovering has not been before convicted thereof, and shall be admitted as an evidence to prove the same. (ƒ)

Offender discovering any

to be discharged.

Cases upon

the construc

tion of the

It has been decided that a foot race, whether the race be upon a given distance, or against a certain time, is a game prohibited by 9 Anne, c. 14. 9 Anne, 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 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) 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

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

(g) Lynall v. Longbotham, 2 Wils. 36.
(h) Brown v. Beckley, Cowp. 282.
(i) Lynall v. Longbotham, 2 Wils. 36
(k) Hawk. P. C. c. 92, s. 52, Good-

burn 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 501. 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.

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 has been held 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. (9)

And that a wager, though for more than 501. that the plaintiff could perform a certain journey in a post-chaise and pair of borses 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. 1, c. 7, s. 2, and 9 Anne, c. 14, and not legalized by 13 Geo. 2, c. 19, or 18 Geo. 2, c. 34, which relate to bond fide horse-racing only. Whaley v. Pajot, 2 Bos. & Pul. 51. So it has been held that an innocent indorsee for valuable consideration could not recover on a bill given in payment of a bet above 101., lost at a legal horse-race. Shillito v. Theed, 7 Bing. 405. See post, p. 459, note (cc). So an agreement by which the defendant sold the plaintiff a horse for 2007., if he trotted eighteen miles within an hour, but for one shilling if he failed, is illegal. Brogden". Marriott, 3 Bing. N. C. 88. So

money lent for the purpose of playing at an illegal game, such as hazard, cannot be recovered back. M'Kinnell v. Robinson, 3 M. & W. 434. And it was ruled that no action can be maintained on a wager on a cock-fight. Squires v. Whisken, 3 Campb. 140. And see as to the offence of keeping a cock-pit, ante, p. 324.

(1) Clayton v. Jennings, 2 Blac. R. 706. (m) Jeffreys v. Walter, 1 Wils. 220. Hodson v. Terrill, 3 Tyrw. 929, 1 C. & M.

797.

(n) Bones v. Booth, 2 Blac. R. 1226. Hodson v. Terrill, supra.

(0) 1 Hawk. P. C. c. 92, s. 56. Anon. 8 Mod. 187.

(p) Rex v. Lookup, 2 Str. 1048. The defendant was accordingly discharged without any fine or costs.

(q) Rex v. Hill, Darley and others, 1 Starkie R. 359. And see Rex v. Gilham, 6 T. R. 265. Rex v. Burdett, 1 Lord Raym. 149, ante, 144. Rex v. Baynes, 2 Lord Raym. 1265.

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