GAMING. 445 



having so been given avoids the contract on which it is 

 founded. In such case, therefore, the Winner not only 

 loses the benefit of his security in writing, but is deprived 

 of his claim to the consideration upon which it was given. 



The Court of Exchequer, however, appear to have gone 

 further in their construction of the Statute ; for Mr. Baron 

 Rolfe, in delivering the Judgment of the Court in Apple- 

 garth V. CoUey (d), and speaking of 5 & 6 Will. 4, c. 41, 

 says, " That Act, while it repeals so much of the Statute 

 of Anne as makes the securities void, expressly enacts that 

 they shall be deemed to have been given on an illegal con- 

 sideration, and it is impossible to impute to the Legislature 

 an intention so absurd as that the consideration should be 

 good and capable of being enforced until some security is 

 given for the amount, and then that, by the giving of the 

 security, the consideration should become bad." 



The necessary conclusion is then arrived at, namely, " that 

 the Statute of Anne, in connection with the 5 & 6 Will. 4, 

 c. 41, must be taken to avoid all contracts for the payment 

 of money won at play;" and of course all other contracts 

 within the first section of 9 Anne, c. 14. 



According to this view, then, every possible considera- 

 tion within 5 & 6 Will. 4, c. 41, for any Note, Bill or 

 Mortgage is void, and we are reduced to the dilemma of 

 being obliged to hold that the Winner of a Stake or the 

 lender of money in any lawful Game, where his right to 

 recover could never otherwise be disputed, is precluded 

 from his remedy on account of the existence of the possi- 

 bility of his taking a Note, Bill or Mortgage within the 

 Statute as security for his Stake or Loan. And therefore 

 the sum agreed to be paid to the Winner of a Horse Race 

 could never be recovered, if we hold that such a Race is 

 now meant by the word Game. However, if the point 

 had come dii'ectly before the Court, perhaps a different 

 opinion might have prevailed. 



In Thorpe v. Cohnan (e), the Court of Common Pleas 

 studiously guarded themselves against expressing an opi- 

 nion on the construction put by the Court of Exchequer 

 upon 5 & 6 Will. 4, c. 41, and the case was decided on 

 another ground. 



In a later case (/), however, Mr. Justice Coltman makes 

 the following remarks: — "It certainly does seem to be a 



[d) Appleaarth t. CoUey, 10 M. & (r) Thorpe v. Cohnan, 1 C. B. 199. 



W. 732. ' ' {f) Batty Y.Marriott, bC.B.^2B. 



