legislature would not have given such a sanction to the commission R. v. Rogier of that offence, by exempting persons residing in the royal palaces and Humphrey. from the penalties imposed by statutes. Inasmuch, then, as gaming is not per se an offence at common law, and the game of rouge et noir has not been declared illegal by the legislature, this indictment is bad, and the judgment must be arrested.— Abbot C. J. I have no doubt that the facts stated in this indictment constitute an offence at common law. Hawkins, in the passage which has been cited, observes, "It has been said that common gaminghouses are nuisances in the eye of the law;" and then he assigns the reason, viz. that they tend to produce certain evil consequences, which is not very different from saying, that they are nuisances if those consequences are produced. Since his time many parties have been convicted upon indictments, in which the keeping of such a house has been charged to be an offence at cominon law. If any confirmation of the authority of Hawkins were wanting, it is to be found in the enactments of the legislature. The 25 G. 2. c. 36. § 5., after reciting that, in order to encourage prosecutions against persons keeping bawdy-houses, gaming-houses, or other disorderly houses, enacts," That if any two inhabitants of any parish give notice in writing to a constable, of any person keeping a bawdy-house, gaming-house, or any other disorderly house, the constable shall go with such inhabitants to a justice of the peace, and shall, upon such inhabitants making oath that they believe the contents of the notice to be true, enter into a recognizance to prosecute such offence, and the constable is to be allowed the expenses of the prosecution, and each of the inhabitants is to receive 107." And section 8. recites, "That by reason of many subtle and crafty contrivances of persons keeping bawdy-houses, gaming-houses, or other disorderly houses, it is difficult to prove who is the real owner or keeper thereof, by which means many notorious offenders have escaped punishment; and then enacts, "That any person who shall appear, act, or behave himself as master, or as the person having the care or management of any such house, shall be deemed to be the keeper thereof, and shall be liable to be prosecuted as such, although he be not the real owner." These provisions are a legislative declaration that the keeping of a gaming-house is an indictable offence. Besides, the 9 Ann. c. 14. § 2. makes playing at any game unlawful, if more than 10. shall be lost. Now in this case the indictment states, not only that the defendants kept a common gaming-house, but that they permitted persons to play there for divers large and excessive sums of money. The playing for large and excessive sums of money would of itself make any game unlawful; and if so, there can be no doubt that this is an offence at common law. - Bayley, Holroyd, and Best Js. concurred, and Holroyd J. further added, that in his opinion it would have been sufficient merely to have alleged, that the defendants kept a common gaming-house. - R. R. (a) (a) In Rex v. Dixon, 10 Mod. 336., it was held that the keeping of a gaminghouse was an offence at common law as a nuisance. In Rex v. Mason, Leach's C. C. p. 548. Grose J. seemed to be of opinion, that the keeping of a common gaming-house might be described generally. See also 2 Hawk. c. 25. § 59. The person acting as mas 25 G. 2. c. 36. punishable as in cases of disorderly houses. And the person who shall appear to act as master, or as having the management of such gaming-house or other disorderly house, shall be deemed a ter to be deemed keeper thereof, and liable as such. And it shall be lawful for any constable, or other person being authorised by warrant under the hand and seal of one justice, to enter such house or place, and to seize every person found therein, that they may be dealt with according to law. the keeper. Licence. Constable's duty upon notice of gaminghouses, &c. Recognizance. §3. Which said licence shall be granted at the last preceding Michaelmas sessions, and shall be signed and sealed by four justices in open court, and afterwards be publicly read by the clerk of the peace, with the names of the justices subscribing the same; and no such licence shall be granted at any adjourned sessions; nor shall any fee be taken for the same. And there shall be affixed and kept up in some notorious place, in large capital letters over the door or entrance of every such licensed house or place, Licensed pursuant to act of parliament of the twenty-fifth of king George the second; and it shall not be opened for such purposes before five in the afternoon. And the affixing and keeping up such inscription, and the said limitation in point of time, shall be inserted in and made conditions of such licence; and in case of a breach of either of the said conditions, the licence shall be forfeited and revoked by the justices at the next sessions, and shall not be renewed; nor shall any new licence be granted. § 5. "And in order to encourage prosecutions against persons keeping bawdy-houses, gaming-houses, or other disorderly houses," it is enacted, "That if any two inhabitants of any parish or place paying scot and bearing lot therein, do give notice in writing to any constable (or other peace officer of the like nature, where there is no constable) of such parish or place, of any person keeping a bawdy-house, gaming-house, or any other disorderly house, in such parish or place, the constable or such officer as aforesaid, so receiving such notice, shall forthwith go with such inhabitants to one of H. M.'s justices of the peace of the county, city, riding, division, or liberty in which such parish or place does lie; and shall upon such inhabitants making oath before such justice, that they do believe the contents of such notice to be true, and entering into a recognizance in the penal sum of 201. each, to give or produce material evidence against such person for such offence, enter into a recognizance in the penal sum of 30l. to prosecute with effect such person for such offence at the next general or quarter session of the peace, or at the next assizes to be holden for the county in which such parish or place does lie, as to the said justice shall seem Charges of pro- meet; and such constable or other officer shall be allowed all the reasonable expenses of such prosecution, to be ascertained by any two justices of the peace (F.) of the county, city, riding, division, or liberty where the offence shall have been committed, and shall be paid the same by the overseers of the poor of such parish or place; and in case such person shall be convicted of such offence, the overseers of the poor of such parish or place shall forthwith pay the sum of 10l. to each of such inhabitants; and in case such overseers shall neglect or refuse to pay to such constable or other officer such expenses of the prosecution as aforesaid, or shall neglect or refuse to pay upon demand the said sums of 10l. and 10%., such overseers, and each of them, shall forfeit to the person en secution. (F.) Reward. titled to the same double the sum so refused or neglected to be 25 G. 2. c. 36. paid." &c. to be bound over. § 6. Provided, "that upon such constable or other officer en- Penalty. tering into such recognizance to prosecute as aforesaid, the said Person keeping justice of the peace shall forthwith make out his warrant, to bring bawdy-houses, the person so accused of keeping a bawdy-house, gaming-house, or other disorderly house, before him, and shall bind him or her over to appear at such general or quarter session or assizes, there to answer to such bill of indictment as shall be found against him or her for such offence; and such justice shall and may, if in his discretion he thinks fit, likewise demand and take security for such person's good behaviour in the mean time, and until such indictment shall be found, heard, and determined, or be returned by the grand jury not to be a true bill.” And by stat. 58 G. 3. c. 70. § 7., after reciting the above provision of 25 G. 2. c. 36. § 5., and that it is expedient that when any two inhabitants of any parish or place, paying scot and bearing lot therein, shall give notice in writing to any constable of such parish or place of any person keeping a bawdy-house, gaminghouse, or any other disorderly house, in such parish or place, that the overseers of the poor of such parish or place shall have notice thereof; it is enacted, that a copy of the notice (A.) which shall be given to such constable shall also be served on or left at the places of abode of the overseers of the poor of such parish or place, or one of them, and such overseers or overseer of the poor shall be summoned or have reasonable notice to attend before such justice of the peace before whom such constable shall have notice to at tend; and if such overseers or overseer of the poor shall then and there enter into such recognizance to prosecute such offender as the constable is in and by the said act required to enter into, then it shall not be necessary for, nor shall such constable be required to enter into such recognizance; but if such overseers or overseer of the poor shall neglect to attend such justice on having such notice, or shall attend, and shall decline or refuse to enter into such recognizance to prosecute, then such constable shall enter into the same, and shall prosecute, and shall be entitled to his expenses, to be allowed as in and by the said act is directed. 58 G. s. c. 70. Notices directed by 25 G. 2. given to constables in certain cases, to be given also to the overseers of the poor; who are to prosecute. (A.) By stat. 25 G. 2. c. 36. § 7., if the constable shall neglect or refuse, 25 G. 2. c. 36. upon such notice, to go before a justice, or to enter into a recogni- Penalty. zance, or shall be wilfully negligent in carrying on the prosecution, he shall forfeit 20l. to each of the said inhabitants. § 8. The person appearing or acting as master, or as having the Who shall be care and management of any gaming-house, shall be taken to be deemed master. the keeper thereof, and liable as such. may give § 9. And on trial, any person may give evidence against the Parishioner defendant, notwithstanding his being a parishioner, or having entered into such recognizance. § 10. And no indictment for such offence shall be removed by certiorari. evidence. By stat. 9 Ann. c. 14. § 2., any person who shall at any time or 9 Ann. c. 14. sitting, by playing at cards, dice, tables, or other game or games Losing 10%. or whatsoever, or by betting on the sides of such as do play, lose to upwards at a any one or more persons so playing or betting in the whole the sum or value of 10., and shall pay or deliver the same, or any part thereof; the person so losing and paying or delivering the same time. shall be at liberty in three months then next to sue for and recover the same with costs in any court of record; and if he shall not bond fide sue in three months, it shall be lawful for any person to sue for and recover the same and treble value, with costs; half to such person who shall sue, and half to the poor. In a prosecution on 9 Ann. c. 14., the indictment charged defendants with winning from prosecutor, at one sitting, more than 10l., viz., a certain specified sum; and it was objected, that it was necessary to prove the loss of the precise sum laid. Ld. Ellenborough held, that as a sum of money was averred to be lost, which was laid under a viz., the prosecutor might prove the winning of a smaller sum, and defendants were convicted of winning a smaller sum than that alleged in the indictment. R. v. Darley and others, 1 Stark. N. P. C. 357. By stats. 9 Ann. c.14. §3. and 18 G. 2. c.34. §3. every person who shall be so liable to be sued for the same shall be obliged and compellable to answer on oath such bill as shall be preferred against him, for discovering the sum of money or other thing so won at play. This is a remedial act; and there is a clear distinction between remedial and penal acts, that in the former, a debt is due to the party grieved before the commencement of the action; but not in the latter. The assignees of a bankrupt may recover from the winner money lost at play by the bankrupt before his bankruptcy, in an action of debt on the stat. 9 Ann. c. 14.; the meaning of the act being, that the money lost and paid to the winner is part of the property of the loser. Brandon v. Pate, 2 H. Blac. 308. See also 2 Ves. jun. 514. By stat. 9 Ann. c. 14. § 6., any two justices may cause to come before them any person whom they shall have just cause to suspect to have no visible estate, profession, or calling to maintain themselves by, but do for the most part support themselves by gaming: and if such persons shall not make it appear that the principal part of his expenses is not maintained by gaming, they shall require of him sufficient securities for his good behaviour for twelve months, and in default thereof shall commit him to the common gaol, there to remain till he find such securities. At any time or sitting.] Bones v. Booth, 2 Blac. Rep. 1226. 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 held to be won at one sitting within the statute. Per Blackstone J. To lose 10l. at one time is to lose it by a single stake or bet; to lose at one sitting is to lose it in a course of play where the company never parts, though the person may not be actually gaming the whole time.. Nares J. the statute is remedial where the action is brought by the party injured, but penal where brought by a common informer. By 18 G. 2. c. 34. § 1., no person shall keep any house, room, or place for playing, or permit any person within any such house, &c. to play at the game of roulet (or roly-poly), or at any other game with cards or dice, already prohibited by law; and if any person shall keep such house, &c. for playing, or permit any per son to play as aforesaid, he shall incur the penalties of stat. 18 G. 2. c. 34. 12 G. 2. c. 28. poly. By 2., if any person shall play at roulet (or roly-poly), or at Playing at rolyany game with cards or dice already prohibited by law, he shall also incur the pains and penalties of stat. 12 G. 2. c. 28. By § 4., persons having jurisdiction to hear and determine informations upon the statutes against excessive gaming, may, upon any information exhibited before them for offences against this act, summon any person (other than the party accused) to appear before them at a certain day, time, and place; and to give evidence for the discovery of the truth of the matter in the said information contained; in case of neglect and refusal to appear, or if on appearing, such person shall refuse to give evidence, or shall give false evidence, he shall forfeit 50l., to be levied by distress and sale; and in default of sufficient distress, he shall be committed to the common gaol for six months. Power of jus tices under By § 5., persons may be witnesses, though they have played, Witnesses. betted, or staked, at any such prohibited games. Persons winning or losing certain sums liable to be in And by § 8., if any person shall win or lose at play, or by betting, at any one time, the sum or value of 10, or within twenty-four hours the sum or value of 201., he shall be liable to be indicted for such offence within six months after it is committed, dicted, &c. before the justices of the king's bench, assize, gaol delivery, or grand sessions; and on conviction shall be fined five times the value of the sum so won or lost; which fine (after charges as the court shall adjudge reasonable are allowed to the prosecutors and evidence) shall go to the poor where the offence was committed. See 1 Russ. 407. By § 10., this act is not to invalidate stat. 9 Ann. c. 14. Gaming in public-houses. See stat. 3 G. 4. c. 77. § 9., scheds. A. and B., tit. Alehouses. By 5 G. 4. c. 83. (Vagrant Act) § 4., it is enacted (int. al.), that Gambling when every person playing or betting in any street, road, highway, or an act of vaother open and public place, at or with any table or instrument grancy. of gaming at any game or pretended game of chance, shall be deemed a rogue and vagabond, and any justice may commit such offender, on conviction, to the house of correction, there to be kept to hard labour, for any time not exceeding three calendar months. By § 6., it shall be lawful for any person whatsoever to appre- Power of aphend any person who shall be found offending against this act, prehension, &c. and forthwith to take or convey him before some justice, to be dealt with as is before directed, or to deliver him to a constable or peace-officer of the place where he shall have been apprehended, so to be taken and conveyed as aforesaid; and in case any constable or peace-officer shall refuse or wilfully neglect to take such offender into his custody, and to take and convey him before some justice, or shall not use his best endeavours to apprehend and convey before some justice any person that he shall find offending against this act, it shall be deemed a neglect of duty in such constable or peace-officer, and he shall, on conviction, be punished in such manner as is herein-after directed. See R. v. Gardener, post, tit. Malicious Injuries. By 11., if any constable or peace-officer shall neglect his Constable negduty in any thing required of him by this act, he is made liable, lecting his duty |