Murphy v. Rogers

C. Allen, J. The second ruling which was requested should have been given. If the plaintiff kept a billiard saloon, and played with the defendant upon the terms that the defendant should pay for the use of the table by both parties in case he lost, but otherwise that he should not pay anything, that was gaming, within the meaning of the Pub. Sts. c. 99, § 5.* So also it was gaming if they played together upon the terms that the defendant, in case he lost, should pay the plaintiff for liquors or cigars to be used by the plaintiff, but otherwise not. In such case, the price of the use of the table, or of the liquor and cigars, was money won by the plaintiff from the defendant by gaming. As to the price of the liquors, this was settled by Commonwealth v. Taylor, 14 Gray, 26, and Commonwealth v. Grourdier, 14 Gray, 390; and the price for the use of the table comes within the same principle. If the facts were as assumed in the second request for a ruling, the original note was given in part for money won by gaming, and was void as between the parties by virtue of the Pub. Sts. c. 99, § 5; and the notes now sued on, which were given in renewal thereof, stand no better. As supporting a similar view of the law, see State v. Leighton, 23 N. H. 167; State v. Maurer, 7 Iowa, 406; State v. Book, 41 Iowa, 550; Ward v. State, 17 Ohio St. 32; Walker v. State, 2 Swan, 287. The cases cited by the plaintiff, and Harbaugh v. People, 40 Ill. 294, are opposed. New trial granted. Footnotes [*] This section is as follows: — “ All notes, bills, bonds, mortgages, or other securities or conveyances in which the whole or part of the consideration is money or goods won by gaming or playing at cards, dice, or any other game, or by betting on the sides or hands of persons gaming, or for reimbursing or repaying money knowingly lent or advanced for gaming or betting at the time and place of such gaming or betting to a person so gaming or betting, shall be void and of no effect as between the parties to the same.”