delivered the opinion of the Court.
The objection to the instruction of the Judge to the jury, which is stated in the bill of exceptions, is, that it involves matter of fact which ought to have been left to the jury. Whether paying the money lost at play by Saunders, one of the plaintiffs, to the defendant, and his receiving it back, under the circumstances stated in the bill of exceptions, was to be regarded, (as was said by the Judge,) in the same light as if the promise had been made directly for the money lost, was matter to be deduced or not, by the jury, from the evidence. So also, whether the money received by Saunders, was for his own use, and not for the firm. If for the firm, his promise to credit ill the books, the next morning, was not a void promise, as stated by the Judge; although, as regarded the money lost at play, he had his remedy against the.defendant, under the statute against gaming.
The judgment is therefore to be reversed, the verdict to be set aside, and further proceedings had therein; in which the instruction given is to be refused.
Judge Coalter absent.