GAMING. A contract between two or more persons by which they
agree to play by certain rules at cards, dice, or other contrivance, and
that one shall be the loser, and the other the winner. When considered
in itself, and without regard to the end proposed by the player's, there
is nothing in it contrary to natural equity, and the contract will be
considered as a reciprocal gift, which the parties make of the thing
played for, under certain. conditions.
2. There are some games which depend altogether upon skill, others, upon
chance, and some others are of a mixed nature. Billiards is an example
of the first; lottery of the second; and backgammon of the last.
3. In general, at common law all games are lawful, unless some fraud has
been practiced, or such games are contrary to public policy. Each of
the parties to the contract must, 1. Have a right to the money or thing
played for. 2. He must have given his full and free consent, and not
been entrapped by fraud. 3. There must be equality in the play. 4. The
play must be conducted fairly. But even when all these rules have been
observed, the courts will not countenance gaming by giving too easy a
remedy for the recovery of money won at play. Bac. Ab. h. t. A.
4. But when fraud has been practiced, as in all other cases, the
contract is void and in some cases, when the party has been guilty of
cheating, by playing with false dice, cards and the like, he may be
indicted at common law, and fined and imprisoned, according to the
heinousness of the offence. 1 Russ. on Cr, 406.
5. Statutes have been passed in perhaps all the states forbidding
gaining for money, at certain games, and prohibiting the recovery of
money lost at such games. Vide Bac. Ab. h. t.; Dane's Ab. Index, h. t.;
Poth. Traite du Jeu; Merlin, Repertoire, mot Jeu; Barbeyrac, Traite du
Jeu, tome 1, p. 104, note 4; 1 P. A. Browne's Rep. 171: 1 Overt. R. 360;
3 Pick. 446; 7 Cowen, 496; 1 Bibb, 614; 1 Miss. 635; Mart. & Yerg. 262; 1 Bailey, 315; 6 Rand. 694; 8 Cowen, 139; 2 Blackf. 251; 3 Blackf. 294; and Stakeholder; Wagers.
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