¶1We regard the law as settled, that no person can recover money which he has knowingly lent to another to be used for the purpose of gambling. Peck v. Briggs, 3 Denio 107; Buckman v. Bryan, 3 Denio 340; McKinnell v. Robinson, 3 M. & W. 434; Langton v. Hughes, 1 M. & S. 593; Gas Co. v. Turner, 5 Bing. N. C. 566; DeBegnis v. Armistead, 10 Bing. 107; Cannan v. Brice, 3 B. & Ald. 179; White v. Buss, 3 Cush. 448.
¶2If a note is given for the money so borrowed, it can not be recovered by the lender; it might he otherwise, if transferred to a bond fide indorsee. Hay v. Ayling, 3 E. L. & E. 416.
¶3If a note is given as a renewal of the first, it would be equally illegal with the first. Hill v. Buckminster, 5 Pick. 391; Bridge v. Hibbard, 15 Mass. 96; Commonwealth Ins. Co. v. Whitney, 1 Met. 21.
¶4If the note had become the bond fide property of the bank, and the plaintiff' had ceased to have any interest in it, his loan of the money to pay it would he a distinct and independent transaction and recoverable. But if the note still remained his property, the lending of the money to pay it and the taking a new note would be a mere renewal, and the infirmity of the original note would still affect the new note. Hay v. Ayling, above.
¶5The instructions asked as to the recovery of money leut for gambling purposes are in conflict with the principles stated, and could not properly he given.
¶6It was no part of the duty of the court to give instructions to the jury as to the facts of the case. The jury must judge for themselves, what facts were proved and what were not.
¶7*499No exception can be taken on account of any defective or erroneous statement of tbe evidence by tbe judge, unless his attention is called to it at tbe time. Here both tbe counsel beard tbe remark now objected to, and no correction was suggested. Tbe time to object was when tbe remarks were made, and tbe counsel must be understood as assenting that tbe error is unimportant, if be does not think it worth bis while to correct it on tbe spot.
¶8Judgment on the verdict.