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.
Decided 1807-11-15
"Wilds, J.,
¶1delivered 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* *228Un^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.
