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Act of January 18, 1819-January 1, 1820. R. C. ch. 147.

8. § 8. If any person or persons shall assault and beat, or shall challenge or provoke to fight, any person or persons whatsoever, upon account of any money or other thing won by gaming or-betting, the person or persons so assaulting, beating, challenging or provoking to fight, being thereof convicted, shall forfeit to the party grieved thirty dollars, to be recovered with costs, by action of debt, in any county or corporation' court, and moreover, shall be liable to the action of the party grieved, at common law. Ibid.

9. § 9. If any person or persons whatsoever, do or shall, at any time or times, by any fraud, shift, cozenage, circumvention, deceit, unlawful device, or evil practice whatsoever, in playing at or with cards, dice or any other game or games, or in or by bearing a share or part in the stakes, wagers or adventures, or in or by betting on the sides or hands of such as do or shall play, win, obtain or acquire to him or themselves, or to any other or others, any sum or sums of money or other valuable thing or things whatsoever, every person so winning by such ill practice, and being thereof convicted, upon indictment or information, shall forfeit five times the value of the money or other thing so won, and shall be deemed infamous, and suffer such corporal punishment as in cases of wilful perjury, and such penalty shall be recoverable with costs, by any person or persons so suing for the same, by action of debt in any court of record in this commonwealth, having cognizance thereof. Ibid.; 9 Ann. c. 14, § 5. See Rex v. Luckeep, 2 Stra. 1048.

10. § 10. Provided always, That any person aggrieved by the judgment of any justice of the peace, upon any conviction for any of the offences in this act, cognizable before him, may appeal to the next court to be held for the county where such person shall be convicted, but shall give reasonable notice of such appeal to the party prosecuting him or her, and shall also enter into recognizances with two sufficient securities, before some justice of the county " or corporation,' wherein the judgment was given, on condition to try such appeal at the next court held for the same county or corporation,' after the entering such appeal, which shall be, by the said court, then heard and finally determined: Provided also, That no such judgment shall be set aside for want of form, wherein it shall appear to the court, that the facts were sufficiently proved at the trial; nor shall any judgment be removed or removable by appeal, or any writ or process whatsoever, into the superior court of law. Ibid.

11. § 11. All moneys exhibited for the purpose of alluring persons to bet against, at any game, and all moneys actually staked or betted whatsoever, shall be liable to seizure by any magistrate or magistrates, or by any other person or persons under a warrant from a magistrate, wheresoever the same may be found; and all such moneys so seized shall be accounted for, by the person or persons making the seizure, to the court of the county or corporation wherein the seizure shall be made, and be paid into the treasury of the commonwealth, for the use and benefit of the literary fund, deducting thereout fifty per centum upon all moneys so seized, to be paid to the person or persons making the said seizure. Jan'y 19, 1798, c. 2, Šes. Acts, p. 4, 2 Shep. Stat. Larg. 75; 1798, c. 221, R. C.

12. 12. Any person or persons, who shall oppose the seizure of any such moneys as above described, by any person or persons so authorized to make it, shall be liable to a penalty of fifteen hundred dollars, to be recovered in any court of record, in the name of the commonwealth for the use of the literary fund; and shall be moreover liable to the action of any party grieved by such opposition; and any person or persons who shall take and carry away any part of the said money, after the said seizure shall be declared, shall be guilty of a misdemeanour. Ibid.

Act of January 18, 1819-January 1, 1820. R. C. ch. 147.

13. § 13. Any person whatsoever, who shall suffer the game of billiards to be played in his or her house, or in a house of which he or she hath, at the time, the use or possession, shall, for every such offence, forfeit and pay the sum of one hundred and fifty dollars, to be recovered in any court of record, by any person who will sue for the same. And every keeper or exhibitor of any billiard table, shall, in addition to the other penalties, which he may be subjected to under this act, forfeit and pay one hundred dollars, for every offence he may be guilty of, against the true intent and meaning of this act; and shall be compelled to give security for his good behaviour, in the sum of five hundred dollars, or more, in the discretion of the court; and if he shall thereafter be guilty of the same, or the like offence, it shall be deemed a forfeiture of his recognizance, and he shall be imprisoned, without bail or mainprize, until the sum, in which he may be therein bound, shall be paid, or until he shall be discharged under the act for the relief of insolvent debtors. Ibid.

14. § 14.-Any justice of the peace may order, by warrant under his hand and seal, any such billiard table to be seized and publicly burnt or destroyed. Ibid. and 1802, c. 15, ed. 1808.

15. § 15. If guests or others play at any game contrary to law, in a tavern, or any out-house, or under any booth, arbour, or other place, upon the messuage or tenement in possession of any tavern-keeper, and the keeper thereof shall not endeavour to hinder(b) them, and if they persist, to give information of the offence, and to give in the names of the offenders, within one month thereafter, to the court or to two justices of the peace, his license shall be revoked by the court, and he shall pay to the informer twenty dollars, unless, being summoned to shew cause to the contrary, he appear and prove such facts as induce them to believe, not only that he did not know of, but moreover that he had no reason to suspect, such playing. May 1740, c. 8, § 4, 5 Stat. Larg. 103; Oct. 1779, c. 42, § 3, 10 Stat. Larg. 206; 1785, c. 74, 12 Stat. Larg. 173; c. 107, R. C.

16. § 16. Every house of entertainment(c) or public resort, (a) within this

(b) See John M. Price's case, gen'l ct. Dec. T. 1837, 8 Leigh, 757.

An indictment against a tavern-keeper for suffering the game of loo to be played in his tavern by certain persons named, will be supported by proof of his having suffered that game to be played therein, though by other persons than those named in the indictment; and if the party was keeper of the tavern at the time of such playing, 'tis sufficient, though he were not licensed to keep a tavern. In this case, Price obtained a license before the trial: Held, judgment could not be rendered for revocation thereof, on conviction for permitting, &c. before trial.

(c) An indictment for unlawful gaming "at the house of one J. N. the same being then and there a house of entertainment.' Held, sufficient on the authority of Wortham v. The Commonwealth, 5 Rand. 669; Linkous v. Commonwealth, 9 Leigh, 608. In this case the court instructed the jury, that if they shall be of opinion from the evidence, that H. L. played at cards at the house of J. N. as in the indictment is alleged, and that the house of said N. was one at which persons, who called therefor, were furnished with either meat or liquor,

for which a charge was made, whether N. had obtained a license or not, the said house is within the contemplation of law a house of entertainment, or tavern, and they ought to find a verdict of guilty; and then refused to instruct them; "that before they can find the defendant guilty, it must appear from the evidence, that the house of J. N. was a house of entertainment licensed by law, or that it was a place of public resort at the time of the playing alleged No

error.

(a) What is a public place, or place of public resort, under this law? See Walker v. Commonwealth, gen'l ct. June T. 1826, in which it was held, that a house located on the public square (in Greensville,) which had been used as a gaol, but at the time of the gaming was not so occupied, but was accessible to any citizen, and was sometimes used by the persons employed to guard the prisoners in the new gaol, and though nothing was kept in the said house for sale, nor was any public business transacted therein, was a public place within this act. See the case, 2 Virg. Cas. 515.

An indictment charging the playing "at a house of public resort," is good, and as correct as if laid in the words of the 5th

Act of January 18, 1819-January 1, 1820. R. C. ch. 147.

commonwealth, whether the same be a licensed tavern or not, shall be deemed and taken to be a tavern, and the owner, master, keeper or occupier of every such house shall be deemed a tavern-keeper, within the true intent and meaning of this act; and the owner, master, keeper, or occupier of any tavern, licensed or unlicensed, shall moreover be deemed to be the owner, master, keeper, or occupier of every house, outhouse, booth, (1) arbour, garden and other place within the curtilage of the principal house, tavern, messuage, or tenement, or in any wise appurtenant(4) thereto, or at any time held therewith; and every such house, outhouse, booth, arbour, garden and other place shall be considered as a part of the tavern, unless the same shall have been bona fide leased to some other person by deed, indented and recorded previous to the time of any offence, against any act for preventing unlawful gaming, or for regulating ordinaries and restraint of tippling-houses, committed therein for a term not less than twelve months from the day of the date of such lease, and for a valuable consideration, bona fide paid or secured to be paid; unless the lessee and his family shall bona fide dwell and board therein, and not elsewhere; and if any such lease or pretended lease be made or recorded, and the lessee shall not actually dwell and board himself and his family in the house or premises so demised, or pretended to be demised, or if the lessee shall directly or indirectly board or diet himself elsewhere, every such lease or demise shall be taken to be fraudulent within this act, and both the lessor and lessee, and his assigns, shall be liable to the same pains, penalties, fines, forfeitures and judgments, as if he or they, or either of them, were tavern-keepers and occupiers of the premises so leased or demised; and judgment against the one shall be no bar or impediment to a prosecution, judgment and recovery against the other, for any offence committed within the same, contrary to the true intent and meaning of this act. Jan. 25, 1803, c. 15, ed. 1808; post. No. 19; 2 Shep. Stat. Larg. 430.

17. § 17. Every keeper or exhibitor of any of the tables commonly called

section, (ante, No. 5,) Wortham v. The Commonwealth, in error, from the hustings court of Richmond, gen'l ct. Nov. T. (26 Nov.) 1827, 5 Rand. 669. See preceding note (c).

Presentment for gaming, charges defendant with playing at unlawful game "at the house of R. L. in B., in the county of P. William :" Held, the presentment is fatally defective, in not charging that the house where, &c. was an ordinary or a public place. Hord's case, 4 Leigh, 674.

Indictment for gaming charges defendant with unlawful playing with cards, to wit: at the game of all fours, of loo, and of whist, at a public place, to wit, at the storehouse of G. H. &c. Held, 1, that to convict the defendant, it is incumbent on the prosecutor to prove that defendant played at some one of the games specified in the indictment; and 2, that if the playing was at the storehouse of G. H. &c. in the night time, after the business of the day was at an end, and the doors closed, the storehouse in that state of things prima facie, was not a public place, though it was so when open to the public in the day time. Windsor's case, 4 Leigh, 680.

(1) On presentment for gaming, the defendant was charged with the offence com

mitted at the booth of P. Skinner; the proof was, of gaming at the booth of Clark, the said S. having no right, interest or agency in the booth: Held, that proof did not support the charge. The Commonwealth v. M. Butts, gen'l ct. Nov. T. 1815, 2 Virg. Cas. 18.

(4) The true construction of this statute requires that the words, "appurtenant thereto, or at any time held therewith," should be held to make only such houses as are used in connection with the principal tavern for the convenience or accommodation of guests, a part of the tavern. But it seems that a house in the occupation of a tavernkeeper, to which guests resort for the purpose of gaming, will be taken to be a part of the tavern. The Commonwealth v. Sanders, 5 Leigh, 751. And see James A. Farmer's case, gen'l ct. December T. 1837, in which it was held, that a barn 200 yards distant from the tavern-house, on the same plantation, or from 60 to 70 yards in the rear of another barn, in a separate enclosure from the tavern-house, in which spirits were sold by the tavern-keeper, in which a party gamed, on a day when many persons were assembled at the tavern for the purpose of mustering, was a public place, within the meaning of this act. 8 Leigh, 741.

Act of January 18, 1819-January 1, 1820. R. C. ch. 147.

A. B. C. or E. O. tables, or faro-bank, or any other gaming table of the same or like kind,(3) under any denomination whatsoever, or whether the same be played with cards or dice, or in any other manner whatsoever, and every licensed or unlicensed tavern-keeper, or occupier of any private house, booth, arbour, stall, racefield, or any other tenement or tenements whatever, who shall knowingly suffer the exhibition or keeping of any such table or tables, or faro-bank, upon any part of the premises, in his or her occupation, shall be held to be guilty of a high misdemeanour; and such keeper or exhibitor, licensed or unlicensed tavern-keeper, occupier of any private house, booth, arbour, stall, racefield, or any other tenement or tenements whatsoever, shall, upon conviction, be sentenced to hard labour and imprisonment in the public gaol and penitentiary-house, for any period of time not less than one, nor more than two years, to be ascertained, as in other cases, by the verdict of a jury; and shall, moreover, be fined in any sum not exceeding five hundred dollars, at the discretion of a jury, to be levied upon his or her goods and chattels wheresoever found, and appropriated in the same manner, as other fines of a like nature are directed to be applied by law. Feb. 17-May 1, 1816, c. 25,(2). See ante, tit. CRIMES, &c. No. 67.

18. § 18. Every person concerned in interest in the keeping or exhibiting of any such gaming table or bank, shall be deemed, to all intents and purposes, a keeper or exhibitor of such table or bank, within the meaning of this act, whether such person were present at the exhibition of such table or bank, or not; and such person may be proceeded against, convicted and punished, in the same manner, as if he had been actually present and aiding in the exhibition. 'Any justice of the peace may, by warrant under his hand, order any such table to be seized, and publicly burnt or destroyed.' Ibid. Oct. 1787, c. 48, § 18, 12 Stat. Larg. 579.

19. § 19. Every unlicensed tavern-keeper, who shall suffer any unlawful (3) A gaming-table, called hap-hazzard, or blind-hazzard, snickup or sweat, held to be a gaming-table of the same or like kind with faro bank. The Commonwealth v. Dickerson Wyatt, gen'l ct. Nov. T. 1828, 6 Rand. 694.

The distinctive feature in the character of the game called A. B. C. and E. O. and faro bank is, that the chances of the game are unequal, all other things being equal; and those unequal chances are in favour of the exhibitor of the games or tables. If other games resemble those standard games in that distinctive feature, they come within the terms of this section, being "gaming tables of the same or like kind,' and are liable to the penalties denounced against those standard games, whatever may be the denomination of those other games, and whether played with cards, dice, or in any other manner. Ibid.

(2) By act of Feb'y 26, 1828, c. 36, § 4, p. 27, it is provided "that any person or persons who shall hereafter be guilty of any of the offences enumerated in the [section above,] shall be held to be guilty of a high misdemeanour, and upon conviction thereof, shall, in lieu of the punishment now prescribed for such offences, be sentenced to confinement in the jail of the county or corporation in which such offender shall have been convicted, for a period not less than two nor more than eight months, to

be ascertained by the verdict of a jury; and shall moreover be fined in any sum not less than two hundred nor more than eight hundred dollars, at the discretion of a jury, to be levied upon his goods and chattels wheresoever found, and appropriated in the same manner as other fines of a like nature are directed to be applied by law. And should any such offender fail to pay any such fine imposed upon him as aforesaid, and the costs of prosecution, before the expiration of the term of imprisonment to which he may have been sentenced, he shall, in such case, remain in jail until said fine be paid: Provided, that the additional term for which any such offender may be imprisoned for failing to pay such fine, and the costs of prosecution, shall in no case exceed the term of six months, to be determined at the discretion of the court. Sup. R. C. c. 220, § 4, p. 275, 276.

The 17th section of the act 1819 is not repealed by the 4th section of this act; nor does this act repeal the act of 21st Feb. 1823, as to offences committed against the 17th section of the act 1819, prior to the 1st of May, 1828. Henry D. Pegram's case, gen'l ct. June T. 1829, 1 Leigh, 569.

See also act Feb'y 27, 1832, Ses. Acts 1831-2, c. 26, p. 26, Sup. R. C. c. 221, p. 276.

Act of January 18, 1819-January 1, 1820. R. C. ch. 147.

gaming, (other than games of faro-bank, A. B. C. or E. O. or games of the same or like kind,) to be carried on, upon any part of the premises in his or her occupation, shall, in addition to the penalties to which he may be subject under any other clause of this act, forfeit and pay one hundred dollars for every such offence, and shall be compelled to give security for his or her good behaviour in the sum of five hundred dollars, or more, in the discretion of the court; and if he shall thereafter be guilty of the same or the like offence, it shall be deemed a forfeiture of his recognizance, and, he shall be imprisoned without bail or mainprize, until the sum in which he may be therein bound, shall be paid, or until he shall be discharged under the act for the relief of insolvent debtors. Jan'y 25, 1803, c. 15, ed. 1808, 2 Shep. Stat. Larg. 428. 20. 25. Whereas it has been represented, that door-keepers and guards have been employed to prevent, hinder, or retard and discourage magistrates and others acting under their authority, from entering houses and places where gamblers resort, for the purpose of unlawful gaming, or to give notice of the approach of such duly authorized persons, &c.: Be it enacted, That, if any person or persons whatsoever, shall hereafter be convicted of any such offence, or of employing, hiring or procuring any person whatsoever, to commit any such offence, or of counselling, advising, aiding or abetting any person to commit any such offence, every person so offending, his or her aiders, abettors, 'advisers, counsellors and procurers, shall be fined, at the discretion of the jury by whom he shall be convicted, not exceeding one thousand dollars, nor less than one hundred dollars, according to the degree of his offence, and his estate, or be imprisoned not less than one, nor more than six months. Ibid. p. 431.

(2) 21. § 20. Every fine, forfeiture and penalty imposed, declared, inflicted or incurred, or which may be imposed, declared, inflicted or incurred, for the use of the commonwealth, under this act, shall and may be recovered in any court of record in this commonwealth, upon presentment(1) or indictment by a grand jury, or upon information filed by the attorney for the commonwealth, in any such court, or by action of debt, bill, plaint or any other legal ways or means whatsoever; and in every such case, no exception shall be admitted or sustained, for any defect or want of form in any presentment, indictment, information or other suit or action whatsoever, which may be brought or instituted on behalf of the commonwealth, or of any person or persons entitled to sue for the same, either on his own behalf, or on the behalf of such person and the commonwealth; but the court before whom any such presentment, indictment, information, suit or action, shall be brought, shall proceed to give judgment according to the very right of the case, any former law, custom or usage, to the contrary notwithstanding. Ibid.(5)

(3) 22. § 21. Where any presentment or indictment, authorized by this act,

(2) (3) A misnomer cannot be pleaded to a presentment, indictment or information, for unlawful gaming, under this act. From the whole scope of these two sections, it is the intention of the legislature to exclude every defence in a gaming case, which does not put in issue the truth of the charge. Com. v. Adkinson, gen'l ct. June T. 1826, 2 Virg. Cas. 513.

Judgment will not be arrested, because several offences are charged against different persons in the same indictment, viz: against one for exhibiting, another for play ing at, and a third for suffering faro to be played at his house. Com. v. M'Guire & al. 1 Virg. Cas. 119.

(1) A tavern-keeper who is presented for suffering faro and loo to be played at his house, may be tried on the presentment alone, without any information; and if he refuses to answer to the presentment, judg ment by default may be rendered against him. The Com. v. J. Maddox, gen'l ct. Nov. T. 1815, 2 Virg. Cas. 19.

The summons to answer the presentment need not allege when and where the offence was committed. The object of the summons is to notify to the party that he is presented for an offence of a particular character; and to apprise him of the time when, and the place where, he must appear and make his defence. The detail of the parti

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