In general, at common law, all games are lawful, unless some fraud has been practised or such games are contrary to public policy. Each of the parties to the contract must have a right to the money or thing played for.. He must have given his full and free consent, and not have been entrapped by fraud. There must be equality in play. The play must be conducted fairly. But; even when all these rules have been observ ed, the courts will not countenance gaming by giving too easy a remedy for recovery of money won at play ; Bacon, Abr. It has been held that money lost at a game of "five up" may be recovered ; Shinn v: Wimberly (Miss.) 12 South. 333. See also Crooks v. McMahon, 48 Mo. App. 48 ; Smith v. Ray, 89 Ga. 838, 16 S. E., 90.
But when fraud has been practised the contract is void ; and in some cases, when the party has been guilty of cheating, by playing with false dice, cards, and the like, he may be indicted at common law; 1 Russ. ,Cf. 406.
Statutes have been passed in perhaps 41 the states forbidding gaming for money at certain games, and probibiting the recovery of money lost at such games; and equity will not lend its aid in a gambling transac tion either to the winner to payment of his unpaid accounts or to the loser who has paid his losses to enable him to recover them back, whether the loser pays this losses in cash or in negotiable securities; Albertson v. Laughlin, 173 Pa. 525, 34 AU. 51 Am. St. Rep. 777.
An act subjecting a building used for gam bling to a judgment of an informer for mon ey lost there at play. is not a taking without due process of law ; Marvin v. Trout, 199 U. S. 212, 26 Sup. Ct. 31, 50 L. Ed. 157, affirm ing 70 Ohio St. 437, 72 N. E. 1161; Trout v. Marvin, 62 Ohio St. 132, N. E. 655. Nor is an act authorizing the, seizure and de struction of gambling devices; J. B. Mullen & Co. v. Mosley, 13 Idaho .457, 90 Pac. 986•; Frost v. People, 193 Ill. 635, 61 N. E. 1054, 86 Am. St. Rep. 352 ; Collins v. Lean, 68 Cal. 284, 9 Pac. 173 ; People v. Adams, 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675; Kite v. People, 32 Colo. 5, 74 Pac.
886 ; State v. Soucie's Hotel, 95 Me. 518, 50 Atl. 709. is said. "the legislature may de termine when that which is property shall cease to be such, if kept against law"; Woods v. Cottrell, 55 W. Va. 476, 47 S. E. 275, 65 L. R. A. 616, 104 Am. St. Rep. 1004, 2 Ann. 933; 12 L. R. A. (N. S.) 394, note.
Statutes' which forbid or regulate places of amusement that may be resorted to for the purpose of gaming or which forbid al together the keeping of instruments made use of for unlawful games, are within the power of the legislature; Cooley, Const. Lim. 749. See Com. v. Colton, 8 Gray (Mass.) 488; State v. Hay, 29 Me. 457.
The uncorroborated testimony of an ac complice is sufficient to warrant a conviction of gaming ; Grant v. State, 89 Ga. 393, 15 S. E. 488.
Option' contracts on grain, etc., or stock, which are intended to be settled by payment of differences„ are invalid; Pearce v. Foote, 113 Ill. 228, 55 Am. Rep. 414; as are option contracts to sell or buy at a future time any grain, etc.; Schneider v. Turner, 130 Ill. 28, 22 N. E. 497, 6 L. R. A. 164. These cases were held not to apply to a contract for fu ture delivery where there was no evidence that delivery was not contemplated, and where a settlement by payment of differ ences only was intended ; Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed, 1183; to the same effect.; Clement v. U. S., 149 Fed. 317, 79 C. C. A. 243 ; In re A. B. Baxter & Co., 152 Fed. 137, 81 C. C. A. 359. Such a contract, legitimate on its face, cannot he held void as a wagering contract because one of the parties understood it to be so.
The proof must show that such understand , ing was mutual; In re A. B. Baxter & Co., 152 Fed. 137, 81 C. C. A. 359. Where the issue was as to whether a sale of commodi ties on margin was a gambling contract, the buyer may testify as to his intention not to receive delivery ; Pope v. Henke, 155 Dl. 617, 40 N. E. 839, 28 L. R. A. 568 ; Waite v. Frank, 14 S. D. 626, 86 N. W. 645.
See GAMING HOUSES ; WAOE'E ; HORSE RACE ;