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CHAPTER THE THIRTY-SIXTH.
Playing at It seems that by the common law, the playing at cards, dice, &c., cards, &c. as when practised innocently and as a recreation, the better to fit a a recreation, and for mode- person for business, is not at all unlawful, nor punishable as any rate sums, is sort of offence : but a person guilty of cheating, as by playing with not any of
false cards, dice, &c. may be indicted for it at common law, and fence. But otherwise as
fined and imprisoned according to the circumstances of the case, to gaming. and heinousness of the offence. (u) We have seen that common
gaming-houses are considered as nuisances in the eye of the law; (0) 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 enact
ments, may be prosecuted by indictment.(d) 9 Ann. c. 14.
The statute 9 Ann. c. 14. s. 5. enacts, that any person who shall 8. 5. Persons
at any time or sitting, by playing at cards, dice, tables, or other losing 101. at a sitting may game or games whatsoever, or by betting on the sides or hands of sue for it a- such as do play at any of these games, lose to any one or more gain; and if
person or persons so playing or betting in the whole the sum or the loser does 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 may recover costs, by action of debt; and in case the loser shall not boná fide the same, and treble the va- 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. (d) As to the penalties imposed upon Abr. 78.
persons gaming, or keeping gaming (6) Ante, 299.
houses, &c. and the proceedings for (c) Ante, 304. And a late statute the recovery of them, see 1 Hawk P.C. 42 Geo. 3. c. 119. declares all games c. 92. 3 Bac. Abr. Gaming. 2 Burn. or lotteries, called Little Goes, to be Just. Gaming. 4 Blac. Com. 172, 173, public nuisances, and provides for 174, and the notes (10) (11), and the their suppression; and also imposes statutes 2 Geo. 2. c. 28. 12 Geo. 2. heavy penalties upon persons keeping c. 28. 25 Geo. 2. c. 36. s. 5. and 16 offices, &c. not authorized by parlia- Car. 2. c. 7. ment.
(e) S. 2.
in case of such
statute then further enacts, that “ if any person or persons what- Any person by
soever do or shall, by any fraud or shift, cousenage, circumven- deceit, &c. “tion, deceit, or unlawful device, or ill practice whatsoever, in monies, &c.
playing at or with cards, dice, or any the games aforesaid, or in or at any one or by bearing a share or part in the stakes, wages, or adven- sitting win
tures, or in or by betting on the sides or hands of such as do or 101. shall for“shall play as aforesaid, win, obtain, or acquire to him or them- feit five times
the value, and, selves, or to any other or others, any sum or sums of money, or “other valuable thing or things whatsoever, or shall at any one ill “ time or sitting win of any one or more person or persons what- deemed infa
soever, above the sum or value of ten pounds, that then every suffer the puperson or persons so winning by such ill practice, as aforesaid, nishment of
or winning at any one time or sitting above the said sum or perjury. “ 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.”
By the 18 Geo. 2. c. 34. s. 8. “ If any person shall win or lose 18 Geo. 2. C. " at play, or by betting, at any one time, the sum or value of ten 34. s. 8. Any pounds, or within the space of twenty-four hours, the sum or
ning or losing “ value of twenty pounds, such person shall be liable to be at any one “ indicted for such offence within six months after it is com,
time 101., or mitted, either before the justices of the King's Bench, assize, hours 201., “ gaol delivery, or great sessions; and being thereof legally con- may be in
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 times the va“ 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 sume. (f)
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. (8) 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.(n) 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)
dicted and fined five
tion of the statute of 9
(f) 18 Geo. 2. C. 34. s. 9. And by 36. s. 10. the act is not to repeal or inva- (h) Brown v. Beckley, Cowp. 282. lidate the 9 Ann. c. 14.
(i) Lynall v. Longbolham, 2 Wils. (8) 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. (S)
(ke) 1 Hawk. P.C. c. 92. s. 52. Good- or 18 Geo. 2. c. 34. which relate to burn v. Marley, 2 Str. 1159. Blaxton bona fide horse-racing only. Whaley v. Pye, 2 Wils. 309. And it has been v. Pajot, 2 Bos, and Pul. 51. And it holden, that a wager on a horse race was ruled that no action can be mainfor less than 501. cannot be recovered tained on a wager on a cock-fight. in an action: the 13 Geo. 2. c. 19. s. 2. Squires v. Whisken, 3 Campb. 140. having prohibited such races. John- And see as to the offence of keeping son v. Bann, 4 T. R. I. and see Bid- a cock-pit, ante, 300. mead r. Gale, 4 Burr. 2432. And that (1) Clayton v. Jennings, 2 Blac. R. a wager, though for more than 501. 706. that the plaintiff could perform a cer- (m) Jeffreys v. Walter, 1 Wils. 220. lain journey in a post-chaise and pair (n) Bones v. Booth, 2 Blac. R. 12:6. of horses in a given time, cannot be (0) I Hawk. P.C. c. 92. s. 56. Anon. so recovered. Ximenes v. Jaques, 6 8 Mod. 187. T. R. 499. Nor a like wager, that a
v. Lookup, 2 Str. 1018. single horse should go from A. to B. The defendant was accordingly dison the high road sooner than one of charged without any finc or costs. two other horses to be placed at any (9) Rex v. Hill, Darley and others, distance their owner should please; 1 Starkie R. 359. And see Rer v. these being transactions prohibited by Gilham, 6 T. R. 265. Rex v. Burdett, 16 Car. 1. c. 7. s. 2. and 9 Aone, c. 14. I Ld. Raym. 149. ante, 146. Rex v. aud not legalized by 13 Geo. 2. c. 19. Baynes, 2 Ld. Raym. 1265.
CHAPTER THE THIRTY-SEVENTH.
OF USURY AND ILLEGAL BROKERAGE.
It was anciently holden that the taking of any kind of considera- Usury a con. tion 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 reasonablc 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.
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 common law. 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 101. 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. I. c. 17. reduced interest to eight per cent.; and it having
(a) i Hawk. P. C. c. 82. s. 4. 410. It is however stated that a very
(6) Exod. c. 22. v. 25. Levit. c. 25. eminent barrister, in the year 1814, v. 36, 37. Deuter. c. 23. v. 19, 20.; advised that, in a case of clear and and see I Hawk. P.C. c. 82. s. 7.2 Blac. palpable usury, a party may be inCom. 455.
dicted at common law. 2 Chit. Criin. (c) 2 Roll. 800. 3 Inst. 151, 152.6 L. 549, note (f) Com. Dig. lsury, (A.) Anon. Hard
c. 16. s. 1. enacts that no person shall
per cent. interest.
above 51. for the forbearance of 1001.
the value of
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 for
feiture of treble the money borrowed. 12 Ann. st. 2. 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 whattake above 51.
soever, above the value of five pounds for the forbearance of one “ hundred pounds for a year, and so after that rate for a greater
or lesser sum, or for a longer or shorter time;" and that all And that all bonds, contracts, &c. whereby there shall be reserved or taken bonds, &c. for above the rate of five pounds in the hundred, as aforesaid, shall be terest shall be utterly void ; "and that all and every person or persons whatvoid.
soever, which shall, upon any contract, take, accept, and reAnd that per
6 ceive, by way or means of any corrupt bargain, loan, exchange, sons taking “ chevizance, shift, or interest of any wares, merchandizes, or
6 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 giring day of payment for one whole year, of and
“ for their money or other thing, above the sum of five pounds the monies,
“ for the forbearing of one hundred pounds for a year, and so after &c.
“ that rate for a greater or lesser sum, or for a longer or shorter
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."
The second section of this statute further enacts, “ that all and that no scri
every scrivener and scriveners, broker and brokers, solicitor and shall take “ solictors, driver and drivers of bargains and contracts, who shall above 5s. for “ take or receive, directly or indirectly, any sum or sums of 1001. for a
money, or other reward or thing for brokage, soliciting, driving, age, &c.; nor
“ or procuring the loan, or forbearing of any sum or sums of
money, over and above the rate or value of five shillings for the besides stamp
“ loan or forbearing of one hundred pounds for a year, and so making or re- “ rateably, or above twelve pence, over and above the stamp newing any “ duties, for making or renewing of the bond or bill for loan, or bond, &c.; on penalty of 201.
“ forbearing thereof, or for any counterbond or bill concerning and costs and the same, shall forfeit for every such offence twenty pounds, imprisonment « with costs of suit, and suffer imprisonment for half a year; the for 6 months.
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 66 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.” As to an in- The provisions of the 12 Car. 2. c. 13. were similar to those of dictment be- the statute of Anne, which have been just cited, except that the ing sustain
rate of interest was fixed by them at six per cent; and it is rethis statute. ported 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
year for brok