Shropshire v. Glascock & Garner, 4 Mo. 536

Statement of the case and opinion of the court, delivered by McGirk, Judge. Shropshire brought an action of debt on a bond, against Glascock and Garner, for $250, in the circuit court of Marion county. The defendants appeared and pleaded several pleas. The 4th plea asserts that the parties agreed to run a horse race for $500; and that it was further agreed, that in case either should fail to run said race, then he should forfeit to the other the sum of $250; and that to secure said forfeiture, the bond in question was made and delivered to Shropshire — wherefore, they pray iudgment, &c.

This plea was demurred to, the demurrer was overruled, and judgment given for the defendants. The only question made by the record, is, whether horse racing is prohibited by the statute of the State. By the act of the General Assembly, passed 1825 — see Revised Laws of 1825, 409. It is enacted, “That all promises, notes, bills, bonds, &c., made or entered into by any person, where the whole or any part of the consideration thereof, shall be for money, &c. won by gaming, or playing at cards, dice, or any game or games, shall-be void and of no effect.” The defendants by Mr.

Anderson, contend, that the words, “won by gaming, or playing at cards, dice, or any other game or games,” include a horse race. That horse racing is as much, by reason of these general words, prohibited, as if expressly named in the act; and that this bond, resting on a consideration contrary to the policy of the law, is therefore void. Mr. Wright, for the plaintiff, contends that the words “other game or games,” are only intended to embrace games of like kind, with cards and dice; and that games of the Turf are not intended to be embraced by the act.

We are not satisfied that this construction of the act is correct. What game would be of such like kind' as to correspond with this construction, ■ we cannot exactly undertake to say. All those games that require a shel-.-ter, a house, a deep cellar or dark place, to be successfully performed, are alike, or are of like kind in the place; but in many, the principles of the games may be essentially different from each other. We therefore say, as. this construction only makes the meaning of the act more obscure than the act would seem to be without it, it cannot be the true one.

The words of the act are very peculiar. It declares all bonds are void where the consideration thereof, shall be money won by gaming.— When these words are used, the sense is complete; and if the statute had said nothing more, it may be safely afi firmed, there would have been no doubt, that money won by horse racing is money won by gaming. The words “or playing-at cards, or dice,” seem to create the ground for the argument of counsel. We think these words are to be understood as synonymous.

Why the legislature specified any instruments at all, by which games are played, we only attribute to the carelessness generally prevalent in all such bodies, with regard to the choice of words. The fact that the legislature intended to use general words, sufficient to embrace all modes of gaming, is made more evident, when we look at the words used together, after the words “or playing at cards, or dice.” For then they say, “or any other game or games,” intending again, to prohibit all fashions and modes of gaming.

Horse-racing is a statunes, “to res train gaming.” By the statute 22, Charles II. gaming of many sorts was forbidden, and horse racing was expressly mentioned also: but this statute did not make contracts, &c. where the consideration was money won by gaming, void. By the statute 9th Anne, the Parliament again enacted, “That all notes, bonds, &c., made, &c., where the consideration of the same shall be money won by gaming, or placing at cards, dice, tables, tennis, bowls, or any other game or games whatsoever, shall be void.” — 3 Bacon 337, 338.

The Judges of England have determined, that a horse race is within this statute. See Lyndell vs. Longbottom, 2 Wilson, R. 36; Goodburn vs. Marly, 2 Strange, R. 1159. We have looked into these cases, and find the English Judges made their decisions expressly on the words, “other game or games These cases present a good judicial

interpretation of the words of our statute. We are therefore, well satisfied, that a bond given for money won at horse racing, is void; and that a bond given to secure the payment of a forfeiture is a contract against the policy of the law, and there-» fore void also. Judgment affirmed with costs.