87 Md. 14 | Md. | 1898
delivered the opinion of the Court.
The plaintiff sued the defendant to recover on a promissory note' for the sum of seven hundred and fifty dollars. The defendant pleaded non-assumpsit.
It appears from the testimony of the plaintiff that he and the defendant “ were copartners as book-makers for the races to be run at the two tracks in Virginia in the year 1895, and that the defendant not having the money to put into the business, the plaintiff agreed to furnish the capital of the same to .the amount of fifteen hundred dollars, and the defendant gave him the note sued on for his one-half of the capital of said business; that the said business had been unsuccessful and said sum of $1,500 was lost therein."
The defendant was asked to state the circumstances under which the note sued on was given, but the plaintiff objected. This objection was overruled, and the defendant was allowed to answer the question. He testified that the note was his genuine note, and that the endorsement “ S. J. Stargardtner” was also genuine; that the plaintiff and defendant had entered into an agreement in Baltimore City to engage in the business of book-making on certain races to be run in 1895 on courses in Virginia, and that at the time the said partnership was formed it was agreed that the sum of $1,500 was to be furnished by the plaintiff, and that the note sued on was to be and was given by the defendant for his share of the capital.” It .further appears from the testimony that “ the business of book-making on horse races is a business in which the book-makers offer bets at certain odds on particular horses in the races, and take all such bets as persons may choose to make with them at the odds offered, and upon the receipt of the money from the persons willing to bet with them, the book-makers issue tickets to them showing the terms of the bet, and if the
The plaintiff also offered testimony tending to prove that the races in question were authorized by the laws of Virginia, and at the close of the case asked the Court to instruct the jury that if they believed from the evidence that the defendant executed the note sued on and had not paid any part thereof, the plaintiff was entitled to recover the amount of the note with interest. But the learned Judge below refused this prayer, and instructed the jury that upon the uncontradicted testimony the note was given in part execution of a contract which was contrary to public policy and therefore void, and that the plaintiff was not entitled to recover. The verdict and judgment being against him, the plaintiff has appealed.
The defendant was permitted to state. the circumstances under which the note was given. This constitutes the first exception. It is clear, however, that there was no error in this ruling, for it is settled that as between two immediate parties, as here between the maker and the payee, “while the note itself is prima facie evidence of the consideration, the question of consideration is always open.” Ingersoll v. Martin, 58 Md. 73.
Nor do we think there was any error in the instruction given the jury upon which is based the second exception. As we have seen the jury were instructed by the learned Judge below that the note sued on was by the uncontradicted evidence in the case given in part execution of a contract which was void, because contrary to public policy. Both the plaintiff and defendant testified that the note was given for the defendant’s contribution to the capital of the partnership „ formed between them to carry on the so-called business of betting on horse races in Virginia. It requires neither argu
The Statute of 16 Charles II, chapter 7, and that of 9 Anne,, chapt. 14, are both in force in Maryland. Hook v. Boteler, 3 H. & McH. 348; Gough v. Pratt, Admr., 9 Md. 533; Emerson v. Townsend, 73 Md. 224; Alexander Brit. Statutes, 475 and 689. By the first, which is entitled “ An Act against deceitful, disorderly, and excessive gaming,” it is provided among other things that those who win bets on horse-races and other games by any fraudulent means or device shall forfeit treble the sum so won; and by the second sec. tion, that notes given for money lost at games, including therein horse races, if such note exceed one hundred pounds, shall be void, and the payee shall forfeit treble the sum thereof. And by the second statute, passed nearly fifty years after the one just cited, which is entitled “An Act for the better preventing of excessive and deceitful gaming,” it is provided that all notes, bills, &c., where the whole or any part of the consideration shall be for money yon by gaming shall be void. As the word gaming, as used in the Statute of' Charles, included betting on horse races, and as the Statute of Anne was passed for the purpose of better preventing the evils of gaming, such betting, and the giving of notes-for money thereby lost, would seem to be within the latter statute, although not expressly prohibited thereby. And it vras so held in Blaxton v. Pye, 2 Wilson, 309; Goodburn v. Marley, 3 Str. 1159; Grace v. McElroy, 1 Allen, 563; People v. Weithoff, 51 Mich. 203. But we are not left in. any doubt as to what the policy of this State is now in regard to betting on horse races, whatever it may have beera
But in addition to what we have said it seems to be clear that the note in question having been given for money advanced or loaned for the purpose of gambling is clearly within the decision in Emerson v. Townsend, where we said, Briscoe, J., delivering the opinion of the Court, that a note is utterly void, where even a part of the consideration was for money loaned and advanced for gambling purposes.
It follows that the judgment appealed from • will be affirmed.
Judgment affirmed.
