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being in its consequences most mischievous to society. In most cases, however, the party was subjected only to pecuniary penalties, recoverable by information, or by summary or civil proceedings: but there were some offences which, by statute, might be prosecuted by indictment. But these enactments have been repealed.

The 5 & 6 Will. 4, c. 41, s. 1, repealed so much of the 16 Car. 2, c. 7, 10 Will. 3 (I.), 9 Anne, c. 14, 11 Anne (I.), 12 Anne, stat. 2, c. 16, 5 Geo. 2 (I.), 11 & 12 Geo. 3 (I.), 45 Geo. 3, c. 72, and 6 Geo. 4, c. 16, as enacted that " any note, bill, or mortgage shall be absolutely void."(d) The 8 & 9 Vict. c. 109, s. 15, repeals "so much of" the 16 Car. 2, c. 7, 10 Will. 3 (I.), 9 Anne, c. 14, and 11 Anne, (I.), "as was not altered by the 5 & 6 Will. 4, c. 41." It seems, therefore, that, as far as the subject of this chapter is concerned, the whole of these four lastmentioned Acts are repealed. The 8 & 9 Vict. c. 109, s. 15, also repeals "so much of" the 18 Geo. 2, c. 34, "as relates to" the 9 Anne, c. 14, "or as renders any person liable to be indicted and punished for winning or losing, at play or by betting, at any one time, the sum or value of ten pounds, or within the space of twenty-four hours the sum or value of twenty pounds." This seems to repeal secs. 3 and 8 of the 18 Geo. 3, c. 34. The 8 & 9 Vict. c. 109, s. 1, also repeals parts of the 33 Hen. 8, c. 9.

By the 8 & 9 Vict. c. 109, s. 17, "every person who shall, by auy fraud or unlawful device or ill practice in playing at or with cards, dice, tables, or other game, or in bearing a part in the stakes, wagers, or adventures, or in betting on the sides or hands of them that do play, or in wagering on the event of any game, sport, *pastime, or exercise, win from any other person to himself, or any other or others, any sum of money or valuable thing, shall be deemed guilty of [*625

obtaining such money or valuable thing from such other person by a false pretence, with intent to cheat or defraud such person of the same, and, being convicted thereof, shall be punished accordingly."

This section comprises several distinct branches :

I. Any fraud or unlawful device or ill-practice in playing at or with cards, dice, tables, or other games; and under this clause the offence consists in the fraud, unlawful device, or ill-practice, and it seems perfectly immaterial whether the game be or be not lawful.

II. Any fraud or unlawful device or ill-practice in bearing a part in the stakes, wagers, or adventures on the sides or hands of them that do play; and here, too, the offence consists in the fraud, and not in the nature of the game.

III. Any fraud, or unlawful device or ill-practice in betting on the sides or hands of them that do play; and here, also, the same remark applies.

IV. Any fraud or unlawful device or ill-practice in wagering on the event of any game, sport, pastime, or exercise; and here, also, the same remark applies. On the whole, therefore, the gist of every offence created by this section appears to be the fraud, unlawful device, or ill-practice; and therefore it seems unnecessary to cite the numerous civil cases decided on the following section.

The 8 & 9 Vict. c. 109, s. 18, enacts, that "all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made; provided always, that this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute, for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise." As it is impossible to foresee that some of the points decided on the repealed enactments may not be useful in cases that may arise on the new Act, they are briefly mentioned. A foot race, whether the race were upon a given distance, or against a certain time, was a game prohibited by 9 Anne, c. 14. (e) And a wager that a person did not find within such a time a man who should carry on foot twenty-four (d) The clause recites the 58 Geo. 3, c. 93, also, but it is omitted in the repeal. (e) Lynall v. Longbotham, 2 Wils. 36. But see now Batty v. Marriott, note (h), infra.

VOL. 1.-32

stone weight ten miles in fifteen hours has been holden to be within the same principle.(f) But where A. betted B. that one C. would not run four miles in twentyone minutes, it was adjudged not be within the statute, because as C. was not playing at such game, there could be no betting on his side within the statute; for C. might be running for his amusement, and not to win any bet.(g) It was, however, held, that laying above ten pounds on a horse race was an illegal *bet within the

*626] statute of Anne, on the ground that the statute ought to be extended to all

sports as well as games, in order to prevent excessive betting.(h) And a wager of ten pounds to five pounds upon a horse race was within the statute, although the race was for a legal plate.(i) Cricket was also held an unlawful game within this statute.(k) It was held also, that if two persons played at cards from Monday evening to Tuesday evening, without any interruption, except for an hour or two at dinner, and one of them won a balance of seventeen guineas, this was won at one sitting within the statute.(7)

(f) Brown v. Beckley, Cowp. 282.

(9) Lynall v. Longbotham, 2 Wils. 36.

309.

(h) 1 Hawk. P. C. c. 92, s. 52; Goodburn v. Marley, 2 Str. 1159; Blaxton v. Pye, 2 Wils. And it has been holden that a wager on a horse race for less than £50 could not be recovered in an action: the 13 Geo. 2, c. 19, s. 2, having prohibited such races: Johnson v. Bann, 4 T. R. 1. and see Bidmead v. Gale, 4 Burr. 2432. And that a wager, though for more than £50, that the plaintiff could perform a certain journey in a post-chaise and pair of horses in a given time, could not be so recovered: Ximenes v. Jaques, 6 T. R. 499. Nor a like wager, that a single horse should go from A. to B. on the high road sooner than one of two other horses to be placed at any distance their owner should please; these being transactions prohibited by 16 Car. 1, c. 7, s. 2, and 9 Anne, c. 14, and not legalized by 13 Geo. 2, c. 19, or 18 Geo. 2, c. 34, which relate to bonâ fide horse-racing only: Whaley v. Pajot, 2 Bos. & Pul. 51. So it has been held that an innocent indorsee for valuable consideration could not recover on a bill given in payment of a bet above £10, lost at a legal horse race: Shillito v. Theed, 7 Bing. 405 (20 E. C. L. R.). So an agreement by which the defendant sold the plaintiff a horse for £200, if he trotted eighteen miles within an hour, but for one shilling if he failed, was illegal: Brogden v. Marriott, 3 Bing. N. C. 88 (32 E. C. L. R.). So a bet of £10 on a legal horse race was prohibited by the 9 Anne, c. 14: Thorpe v. Coleman, 1 C. B. 990 (50 E. C. L. R.). Where a plea stated that a horse race was about to be run, and that an illegal game called a lottery, not authorized by law, was set up by the defendant for certain subscribers of £1 each, to be paid to the defendant under regulations which amounted in substance to this, that the subscriber whose name should be drawn out of a box next after the name of the horse was drawn out of another box, which horse should be placed first in the race, should be entitled to receive from the defendant £100, it was held that this was an illegal lottery within the 10 & 11 Will. 3, c. 17, and 42 Geo. 3, c. 119; and that, admitting that the transaction was more properly in the nature of a bet, it clearly fell within the 9 Anne, c. 14, s. 2: Allport e. Nutt, 1 C. B 974 (50 E. C. L. R.); Gatty v. Field, 9 Q. B. 431 (58 E. C. L. R.), s. p., where it was doubted whether these cases would be affected by the 8 & 9 Vict. c. 109, s. 18, which passed after they arose. But in Batty v. Marriott, 5 C. B. 818 (57 E. C. L. R.), where two persons agreed to run a foot-race, and each of them deposited £10 with another person, the whole £20 to be paid over to the winner; it was held that the case was within the proviso in sec. 18 of the 8 & 9 Vict. c. 109, and the transaction lawful. But this case was doubted in Parsons v. Alexander, 5 E. & B. 263 (77 E. C. L. R.), where Lord Campbell, C. J., said, "the enacting part of the section includes all gaming and wagering, whether on lawful or unlawful games, not merely gaming and wagering among bystanders, but also between the players, and it applies as well to deposits to abide the event of a wager as to other bets. The proviso must be read in conjunction with that enactment. But for the case of Batty v. Marriott, I should have said that proviso was confined to cases in which persons contributed to a plate or something analogous to a plate." And it was held accordingly that where a defendant played with the plaintiff and others in a public billiard-room at billiards and at pool, at first for small stakes which he won, then for increasing stakes which he lost, and each player contributed from time to time during the game, and according to its chances, to a stake, which was carried off by the ultimate winner, the case was not within the proviso in sec. 18. So money lent for the purpose of playing at an illegal game, such as hazard, cannot be recovered back: M Kinnell v. Robinson, 3 M. & W. 434. And it was ruled that no action could be maintained on a wager on a cock-fight: Squires v. Whisken, 3 Campb. 140. And see as to the offence of keeping a cock-pit, ante, p. 444.

(i) Clayton v. Jennings, 2 Blac. R. 706.

(k) Jeffreys v. Walter, 1 Wils. 220; Hodson v. Terrill, 3 Tyrw. 929; 1 C. & M. 797 (40 E. C. L. R.)

(1) Bones v. Booth, 2 Blac. R. 1226; Hodson v. Terrill, supra.

If a loser preferred an indictment against a winner on this statute of Anne, and the grand jury found the bill, the Court would not permit an information to be filed against the defendant, although the indictment was quashed, and, of

course, the defendant never tried upon it; for the grand jury might find [*627

another bill for the same offence.(m)

Upon the ground that the judgment of the Court was only quod convictus est, and was to be the foundation of an action to recover the penalty, it was urged in one case, that it was necessary to prove the sum precisely as laid in the indictment; but Lord Ellenborough, C. J., was of opinion that although, if the prosecutor had averred in the indictment that the defendants had won any bills of exchange of a specified amount, the allegation must have been proved as laid; yet that since the sum only was averred, and that under a videlicet, the prosecutor was entitled to prove winning of a smaller sum.(n)

Where a person lost money by gaming, and paid it by a check on a banker, which was cashed by the banker on a subsequent day in a different parish, it was held, that the offence prohibited by the 9 Anne, c. 14, s. 2, was committed where the money was lost and won. and not where the check was cashed; and that such a transaction was substantially a gaming for ready money, and not a gaming on credit.(o) And a strong opinion was given that the statute was confined to gaming for ready money; for the statute was not confined to money lost, but extended to other things; and it was a very violent construction to suppose that it was intended only to apply to goods that a party might have about his person at a gamblinghouse. Why should it not apply to horses, or wine, or any other commodity not of a portable nature, and which, therefore, could not be delivered until the following day at the least?(p)

An indictment alleged that the prisoner by fraud, unlawful device, and ill-practice in playing at and with cards, unlawfully did win from one H. F. Bernard to a certain person unknown a certain sum of money, with intent to cheat the said H. F. Bernard of the same, and it was moved, in arrest of judgment, that the indictment was bad for not alleging the ownership of the money won; but, upon a case reserved, it was held that the indictment was sufficient, as it described the offence in the words of the statute.(q)

In the preceding case some of the judges intimated an opinion that the offence might be committed, although no money were actually paid; as the word " "win might be construed in the sense of obtaining a title to a sum of money by becoming the winner of a stake; but such a construction is plainly inconsistent with the latter part of the clause, for how can a person, who merely obtains a title to a thing, "be deemed guilty of obtaining such money or valuable thing from such other person ?" If, however, a case were to occur where every other ingredient of the offence were proved except the payment of the money, the party might be convicted of an attempt to commit the offence under the 14 & 15 Vict. c. 100, s. 9.

and

Where on an indictment under the 8 & 9 Vict. c. 109, s. 17, it *appeared that the prisoners began to play skittles in the prosecutor's presence; [*628 B., one of them, appeared to be very drunk, and played so badly that he lost every game; and the others then persuaded the prosecutor to play with B., and stake large sums upon the game, for he was sure of winning; and the prosecutor accordingly did play with B. several games for large sums, every one of which he lost; and the prisoners, having got all the the prosecutor's money, ran away; it was contended that there must be fraud in the act of playing, and here the fraud was before the game commenced; and the Recorder held, that the fraud relied on must be a fraud put in practice during the game itself. (r)

(m) 1 Hawk. P. C. c. 92, s. 56; Anon., 8 Mod. 187.

(n) Rex v. Hill, 1 Starkie R. 359. And see Rex v. Gilham, 6 T. R. 265; Rex v. Burdett, 1 Lord Raym. 149, ante, p. 211; Rex v. Baynes, 2 Lord Raym. 1265. (0) Smith v. Bond, 11 M. & W. 549.

(P) Ibid.

(9) Reg. v. Moss, D. & B. C. C. 104.

(r) Reg. v. Bailey, 4 Cox C. C. 390. The prisoners were convicted of a conspiracy to cheat. It was also contended that the game of skittles was not within the first clause of the section; that the words "other game" must be confined to the same sort of games

Where the three prisoners being at a public house with the prosecutor, one of them, in concert with the others, placed a pen case on the table and left the room, and whilst he was absent one of the others took the pen out of the case, and put a pin in its place, and the two prisoners induced the prosecutor to bet with the third prisoner when he returned that there was no pen in the case, and the prosecutor staked fifty shillings, and on the pen case being turned up another pen fell into the prosecutor's hand, and the prisoners took the money; it seems to have been considered clear that the case did not come within the 8 & 9 Vict. c. 109, s. 17.(s)

*629]

*CHAPTER THE THIRTY-SEVENTH.

OF OFFENCES RELATING TO DEAD BODIES.

Ir is an indictable offence to take up a dead body, even for the purpose of dissection. Upon an indictment for this offence it was moved in arrest of judgment, that if it were any crime, it was one of ecclesiastical cognizance only; that it was not made penal by any statute; and that the silence of Stamford, Hale, and Hawkins upon this subject, afforded a very strong argument to show that there was no such offence cognizable in the criminal courts. But the Court said, "that common decency required that the practice should be put a stop to; that the offence was cognizable in a criminal court, as being highly indecent, and contra bonos mores, at the bare idea alone of which nature revolted. That the purpose of taking up the body for dissection did not make it less an indictable offence; and that, as it had been the regular practice of the Old Bailey, in modern times, to try charges of this nature, many of which had induced punishment, the circumstance of no writ of error having been brought to reverse any of these judgments was a strong proof of the universal opinion of the profession upon this subject; and they, therefore, refused even to grant a rule to show cause, lest that alone should convey to the public an idea that they entertained a doubt respecting the crime alleged."(a) To sell the dead body of a capital convict for the purposes of dissection, where dissection is no part of the sentence, is a misdemeanor, and indictable at common law.(b)

It is an offence against decency to take a person's dead body, with intent to sell or dispose of it for gain and profit. An indictment charged (inter alia) that the prisoner a certain dead body of a person unknown lately before deceased wilfully, unlawfully, and indecently did take and carry away, with intent to sell and dispose of the same for gain and profit; and it being evident that the prisoner had taken the body from some burial ground, though from what particular place was uncertain, he was found guilty upon this count. And it was considered that this was so clearly an indictable offence, that no case was reserved.(c)

It is a misdemeanor at common law to remove without lawful authority a corpse

as those previously specified, which were all games of chance; and that the game of skittles was more reasonably included within the latter branch of the clause: but no opinion was expressed on this point.

(s) Reg. v. Hudson, Bell C. C. 263. The prisoners were convicted of a conspiracy to

cheat.

(a) Rex v. Lynn, 2 T. Rep. 733; 1 Leach 497; 2 East P. C. c. 16, s. 89, p. 652. In 4 Blac. Com. 236, 237, stealing a corpse is mentioned as a matter of great indecency; and the law of the Franks is mentioned (as in Montesqu Sp. L. b. 30, ch. 19), which directed, that a person who had dug a corpse out of the ground, in order to strip it, should be banished from society, and no one suffered to relieve his wants till the relations of the deceased consented to his readmission.

(b) Rex v. Cundick, D. & R. N. P. C. 13, Graham, B.

(c) Rex v. Giles, Bayley, J.; MS., Bayley, J., R. & R. 366, note (b). And see Rex v. Duffin, R. & R. 365.

1 Comm. v. Loring, 8 Pick. 370.

[*630

from a grave in a burying-ground of a congregation of Protestant dissenters; and is no defence to such a charge that the motive for removing the corpse was pious and laudable. The indictment charged the defendant with unlawfully entering a burial-ground belonging to a congregation of Protestants dissenting from the Church of England, and unlawfully and indecently opening the grave of Louisa Sharpe, and unlawfully and indecently carrying away her body. The defendant's mother and some other relations had been buried in one grave in the burying-ground of a congregation of dissenters at Hitchin, with the consent of those that were interested. The defendant's father had recently died, and the defendant prevailed on the wife of the person who had the key of the buryingground to allow him to cause the said grave to be opened, upon the pretext that he wished to bury his father in that grave, and in order to examine whether the size of the grave would admit his father's coffin. He caused the coffins of his stepmother and two children to be taken out, and so came to the coffin of his mother, which was under theirs, and was much decomposed, and caused the remains of this coffin, with the corpse therein, to be placed in a shell and carried to a cart and driven some miles away towards a churchyard where he intended to bury his father's corpse with the remains of his mother. These acts were done without the consent of the congregation or the trustees having the legal estate in the ground; and the jury found that the statement of the defendant that he intended to bury his father there was only a pretext, and that his real intention from the beginning was to remove his mother's corpse; but that he acted throughout without intentional disrespect to any one, being actuated by motives of affection to his mother and of religious duty: and, upon a case reserved, Erle, J., delivered judgment: "We are of opinion that the conviction ought to be affirmed. The defendant was wrongfully in the burial-ground, and wrongfully opened the grave, and took out several corpses, and carried away one. We say he did this wrongfully, that is to say, by trespass; for the license which he obtained to enter and open from the person who had the care of the place, was not given or intended for the purpose to which he applied it, and was, as to that purpose, no license at all. The evidence for the prosecution proved the misdemeanor, unless there was a defence. We have considered the grounds relied on in that belief, and, although we are fully sensible of the estimable motives on which the defendant acted, namely, filial affection and religious duty, still neither authority nor principle would justify the position that the wrongful removal of a corpse was no misdemeanor if the motive for the act deserved approbation. A purpose of anatomical science would fall within that category. Neither does our law recognize the right of any one child to the corpse of its parent as claimed by the defendant. Our law recognizes no property in a corpse, and the protection of the grave at common law, as contradistinguished from ecclesiastical protection to consecrated ground, depends upon this form of indictment, and there is no authority for saying that relationship will justify the taking a corpse away from the grave where it has been buried."(d)

*A man is bound to give Christian burial to his deceased child, if he has [*631 the means of doing so; but he is not liab'e to be indicted for a nuisance for not burying his child, if he has not the means of providing burial for it. He cannot sell the body, put it into a hole, or throw it into a river; but unless he has the means of giving the body Christian burial, he is not liable to be indicted, even though a nuisance may be occasioned by leaving the body unburied, for which the parish officer would probably be liable."(e) The prisoner was indicted for having neglected and refused to bury the body of his deceased child, whereby a nuisance. was created. The prisoner, at the time of the death of his child, was a pauper receiving parochial relief from a parish in the Leicester union, and soon after the

(d) Reg. v. Sharpe, D. & B. C. C. 160.

(e) Lord Campbell, C. J., in Reg. v. Vann, 2 Den. C. C. 325. The 7 & 8 Vict. c. 101, s. 31, enacts that it shall be lawful for guardians, or where there are no guardians, for the overseers to bury the body of any poor person, which may be within their parish or union respectively, and to charge the expense thereof to any parish under their control, to which such person may have been chargeable, or in which he may have died, or otherwise in which such body may be.

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