ing. But that was not the case here. The contest which was determined by the election upon which this bet was made had no reference to the bet, nor does it appear the candidates knew it was pending. In this view of the case, we are of opinion the grand jury had no right to send for the witness, nor, after he was before them, to find this presentment of his evidence. By the act of 1817, c. 61, sec. 4, it is declared that indictments for gaming may be preferred without a prosecutor being marked thereon. But this act does not authorize this indictment to be so prosecuted, because it has been shown that it was not an indictment for gaming. As therefore this is not an indictment for gaming, and as the presentment is void, it is indispensable, that a prosecutor should have been marked upon the indictment, and this not having been done, the demurrer to the plea of the defendant was properly overruled.

Affirm the judgment.

WHAT IS GAMING.-In Bell v. State, 5 Sneed, 507, the court defined gaming to be "An agreement between two or more persons to risk their money or property in a contest or chance of any kind where one may be gainer and the other loser." Substantially the same definition has been given by other courts in Portis v. State, 27 Ark. 360; State v. Smith, 2 Yerg. 281; Harrison v. State, 4 Coldw. 195; Eubanks v. State, 3 Heisk. 490.

Wharton's definition that "gaming is to stake money on a chance," although stated in much fewer words, contains all the essential elements of the offense: Whart. Crim. L. sec. 1465. At the common law, gaming, as by playing at cards, dice, etc., when practiced innocently, and as a recreation, the better, as it was said, to fit a person for the business of life, was not unlawful; and the winner might even maintain a special indebitatus assumpsit for the stake won. When, however, such games became an incitement to a breach of the peace, so as to constitute a nuisance; or tended to immorality; or affected the interests or feelings of others; or exposed them to ridicule; or were against public policy; or were conducted by means of cheating or by fraud, as by playing with false cards, dice, etc., they were unlawful at common law: Bac. Abr. tit. Gaming; Archb. Crim. Pr. and Proc., tit. Gaming, and cases cited. The tendency of modern legislation and judicial action, both in this country and in England, has been, not only to declare all gaming contracts void civilly, on the grounds of public policy, but to constitute the participation in, and the carrying on of, certain kinds of games, an offense. To this end, statutes have been passed in all the states and in England, which prohibit, with greater or less degree of particularity, the carrying on of such games, and punish the offender with fine or imprisonment, or both. Great diversity exists in the details of the various state statutes regulating the offense, giving rise to no little conflict of judicial opinion, which is necessarily irreconcilable. Before, therefore, a decision of one state is used as an authority in another, a com parison of the respective statutes of such states should be made, in actual practice. The limits of this note will admit of no such extended comparison. To constitute the offense, the chance upon which the betting is made must be the controlling element of the game: Whart. Crim. L., sec. 1465; or, as was said in the principal case, "there must not only be a betting upon the determination of an event. but the course of action to bring about such event

must have originated and commenced with the view to determine the bet." The bet is complete when the offer to bet is accepted; and placing money on a gaming-table, without objection by the player or owner of the game, is such offer and acceptance, and renders the parties participating guilty of gaming, whether the game is played out or not; State v. Welch, 7 Port. 463. But see Bagley v. State, 1 Humph. 490, where the court says that the event upon which the wager depended must have been decided. It is not necessary, however, that the stake should be put up before the game commences; an agreement to pay according to the result of the game is sufficient; State v. Leicht, 17 Iowa, 28. Every distinct bet on a game, though at the same sitting, is a separate offense: Torney v. State, 13 Mo. 455; Cameron v. State, 15 Ala. 383; Swallow v. State, 20 Id. 30; Buck v. State, 1 Ohio St. 61; on the other hand it has been held that consecutive games at the same sitting constitute but one infringement of the statute: Wingard v. State, 13 Ga. 396; Heisler v. State, 20 Id. 155. Nor does it make any difference whether the amount of the stake is large or small: State v. Albertson, 2 Blackf. 251. Nor need the thing actually bet be property of any worth; it is sufficient if the playing is for checks, notes, or instruments, understood by those engaged in the game to represent value, and which are afterwards to be exchanged for money: Porter v. State, 51 Ga. 300; Gibbons v. People, 33 Ill. 442; Ashlock v. Commonwealth, 7 B. Mon. 44; Walton v. State, 14 Tex. 381. It is even unnecessary, under certain circumstances, that the playing and betting should be done by the same party. One playing a prohibited game, at which others are betting, may be guilty of gaming: Smith v. State, 5 Humph. 163; and, conversely, persons looking on and encouraging the game, although they do not bet, may be indicted for the sanie, as principals: Johnson v. State, 4 Sneed, 614; Howlett v. State, 5 Yerg. 145; Fugate v. State, 2 Humph. 397. But see Ex parte Ah Yum, 53 Cal. 246.

WHAT GAMES ARE, AND WHat are not, UNLAWFUL.-The courts of this country and of England, in their interpretation of the various statutes respecting gaming as an illegal act, have been careful to draw a distinction between such offense and the innocent playing of games, even when for a prize: Whart. Crim. L., sec. 1464. Nevertheless a surprising difference of opinion exists between the courts of the several states in respect to what games are unlawful when played for money or other property, as the following cases will illustrate: Throwing dice is: Darling Jones v. State, 26 Ala. 155; but where a certain price is paid for each chance, so as to make the game a raffle, it is not: Norton v. State, 15 Ark. 71. Nine-pins is: Bass v. State, 37 Ala. 469; Commonwealth v. Goding, 3 Metc. 130; and it is the same if the amount risked is but the price of the game: State v. Records, 4 Harr. 554; but see contra, State v. Gupton, 8 Ired. 271; Sigel v. Jebb, 3 Stark. 2. Playing cards for money or the price of liquor or cigars is: State v. Albertson, 2 Blackf. 251; Bachellor v. State, 10 Tex. 261; McDaniel v. Commonwealth, 6 Bush, 326; State v. Maurer, 7 Iowa, 406; State v. Coster, 10 Id. 453; State v. Lietch, 17 Id. 28; State v. Bishel, 39 Id. 42; Commonwealth v. Taylor, 14 Gray, 26; Commonwealth v. Gourdier, Id. 390; Hitchins v. People, 39 N. Y. 454; Commonwealth v. Terry, 2 Va. Cas. 77. That a pack of cards is a gambling device, see Frisbee v. State, 1 Or. 264; contra, State v. Hardin, 1 Kans. 474. Keno is: Trimble v. State, 27 Ark. 355; Porter v. State, Id. 360; New Orleans v. Miller, 7 La. Ann. 651; Miller v. State, 48 Ala. 122; United States v. Hornebrook, 2 Dill. 229. Rondo is: Barker v. State, 12 Tex. 273; Rainey v. State, 14 Id. 409. Cock fighting is: Johnson v. State, 4 Sneed. 614; Commonwealth v. Tilton, 8 Metc. 232; Bagley v. State, 1 Humph. 486.

Horse racing is: Tatman v. Strader, 23 Ill. 493; Garrison v. McGregor, 5" Id.

473; Ellis v. Beale, 18 Me. 337; Cheesum v. State, 8 Blackf. 332; Wade v. Dennis, 9 Ind. 35; Shropshire v. Glascock, 4 Mo. 336; McKeon v. Caherty, 1 Hall, 300; Wood v. Wood, 3 Murphy, 458; Haskett v. Wootan, 1 Smed. & M. 180; Tollett v. Thomas, L. R., 6Q. B. 515; Buston v. Buston, L. R., 1 Ex. D. 13; Higginson v. Simpson, L. R., 2 C. P. D. 76; Morgan v. Beaumont, 121 Mass. 7. But see contra, Harrison v. State, 4 Coldw. 195; Harless v. United States, 1 Morris, 160; State v. Porce, 23 Ark. 726; State v. Hayden, 31 Mo. 35; Shelton's case, 8 Gratt. 592; McElroy v. Carmichael, 6 Tex. 456; Whart. Crim. L., sec. 1465, and cases cited. Nor will the fact that a charter has been granted for a race-course authorize betting thereon: Cain v. McHarry, 2 Bush, 263. Thimble, or thimble the balls, is: State v. Red., 7 Rich. 8. Pool is: State v. Jackson, 39 Mo. 420; Rogers v. State, 26 Ala. 65, 1 Tex: App. 364. Faro is: Allen v. Watson, 2 Hill (S. C.), 319, where the court said that faro will be presumed to be unlawful in every state: State v. Markham, 15 La. Ann. 498; and the imposition of a tax upon a faro table does not authorize its use for gaming: State v. Doon, R. M. Charlt. 1; but see Fagan v. State, 21 Ark. 390, as to when playing at faro is not unlawful. Under the California statute (penal code, sec. 330), one who merely bets at a game of faro is not guilty of gaming; nor is such person an accessory to the crime, as the intent in the two cases is quite different: Ex parte Ah Yum, 53 Cal. 246. Lotto is: Lowry v. State, 1 Mo. 722. Shooting match is: Myers v. State, 3 Sneed, 98. Selling prize candy packages is: Eubank v. State. 3 Heisk. 488. Gift enterprise, so called, or where a tradesman, as an inducement to purchase, gives each of his customers a ticket, whereby such persons are entitled to a chance to win certain other articles, is: Bell v. State, 5 Sneed, 507. Taking a chance in a raffle, or betting at a game regularly licensed and paid for, is not, within the Alabama code: Hawkins v. State, 33 Ala. 433; State v. Attaire, 14 Id. 435; State v. Moseley, Id. 390; Norton v. State, 15 Ark. 71. Nor is playing on a licensed billiard table, the loser to pay for the price of the game, because that is one of the rules of the game, and the winner gains nothing by it: People v. Sargeant, 8 Cow. 139; Blewett v. State, 34 Miss. 606; Parsons v. Alexander, 1 Jur. (N. S.) 660; nor is the owner of the billiard table liable, Harbaugh v. People, 40 Ill. 294. But see contra, Ward v. State, 17 Ohio St. 32. Shuffle-board is not, in North Carolina, that being a game of skill: State v. Bishop, 8 Ired. 266.

In England, the following games have been held lawful, when played for a stake: Dominoes, R. v. Ashton, 1 El. & Bl. 286; cricket: Walpole v. Sanders, 7 Dow. & Ry. 130; Jeffreys v. Walter, 1 Wils. 220; Hodson v. Terrell, 1 C. & W. 797; coursing: Daintree v. Hutchinson, 16 Mee. & W. 87; Hirst v. Molesburg, L. R., 6 Q. B. 130; foot-ball and quoits: Manby v. Scott, 1 Mod. 136; wrestling matches, when not prize-fights: Kennedy v. Gad, 3 Car. & P. 376; rowing matches: Bostock v. R. R., 3 M. Dig. 274; foot-racing: Batty v. Marriott, 5 C. B. 818; Emery v. Richards, 14 Mee. & W. 728; Coombs v. Dibble, L. R., 1 Exch. 248.

When a bargain concerning stock for an option to call is, and when is not, gaming: See Kirkpatrick v. Bonsall, 72 Pa. St. 155; Smith v. Bouvier, 70 Id. 325; Brua's appeal, 55 Id. 294. Giving a prohibited game a new name does not take it out of the statute: State v. Maurer, 7 Iowa, 66; Smith v. State, 17 Tex. 191.

The principal case has been cited and followed in Smith v. Stevens, 5 Sneed, 255; Bagley v. State, 1 Humph. 490; Harrison v. State, 4 Coldw. 148.

ELECTION WAGERS.-The effect of wagers on elections is discussed in the note to Bunn v. Riker, 4 Am. Dec. 299. See also the authorities collected in note to Rust v. Gott, 18 Id. 500.

SMART V. KING.

[MEIGS, 149.]

BEQUEST TO GRANDCHILDREN, when INCLUDES POSTHUMOUS CHILD.-Under a residuary clause of "all my estate, real and personal, to be equally divided between my grandchildren," a posthumous grandchild, in ventre sa mere at the time of the testator's death, takes equally with the other grandchildren.

BILL for a construction of a will, and that complainant be decreed to have an equal share with the other grandchildren of Samuel Todd. The chancellor dismissed the bill, and the complainant appealed.

George S. Yerger, for the complainant.

R. J. McKinney, for the defendants.

By Court, TURLEY, J. Samuel Todd made and published his last will, in which is the following residuary devise: "All the rest of my estate, real and personal, to be equally divided between my grandchildren." The complainant is one of his grandchildren, who was not born at the time of the testator's death, but was in ventre sa mere, and the question is, whether under these circumstances, he is entitled to his equal portion of the bequest of his grandfather?

Whatever may have been the earlier decisions on this point, it would seem that there is not at present any doubt that the complainant is entitled to the relief sought. In the case of Trower v. Butts, reported in Simon & Stewart, 181,' and in 1 Cond. Eng. Ch. 90, the vice-chancellor, in commenting on this subject, observes: "It is now fully settled that a child in ventre sa mere is within the intention of a gift to children living at the death of a testator; not because such child can strictly be considered as answering the description of a child living, but because the potential existence of such a child places it plainly within the reason and motives of the gift." It is said in note 2, to Heathe v. Heathe, 2 Atk. 121, 122, "that the general rule in cases of this nature seems to be, that when the devise or gift to the children is general, and not limited to a particular period, then it is confined to the death of the testator, and that under a devise to children living at the testator's death, a child in ventre sa mere shall take;" and the editor cites Pr. Ch. 470;2 2 Ves. 83;3 Ambl. 348; 1 Bro. Ch. 532;3 2 Id. 352;6 Pr. Ch. 50; 1 P. Wms. 245;' 1 Ves. 85; 2 Bro. Ch. 320.1o

1. Sim. & Stu. 181.

4. Isaac v. Isaac.

7. Hale v. Hale.

10

5. Congreve v. Congreve. 6. Hughes v. Hughes; 3 Bro. Ch. 352. 8. Beale v. Beale. 9. Millar v. Turner. 10. Clarke v. Blake.

In the case of Swift v. The Executors of Swift, 5 Serg. & R. 38, the supreme court of Pennsylvania have determined "that a posthumous grandchild, in ventre sa mere, at the time of making the will and death of the testator, is entitled to a grandchild's share, under a devise and bequest to the testator's grandchildren, the children of his deceased son, Edward, of all the residue and remainder of his estate, both real and personal;" and this is, as Judge Duncan in that case says, "according to the dictates of common sense and humanity;" for a child “in ventre sa mere, for all purposes for his benefit, is considered as absɔlutely born; he takes by descent, and by distribution is entitled to the benefit of a charge for securing portions for children; may be an executor, may have a guardian assigned, in executory devises is a life in being, and may be vouched in a common recovery." The authority and reasoning of the cases referred to are satisfactory to this court.

The judgment of the court below will therefore be reversed, and a decree rendered for the complainant in conformity with the prayer of his bill.

POSTHUMOUS CHILD is not comprehended in a devise to children: Armi stead v. Dangerfield, 5 Am. Dec. 501; or to a class: Myers v. Myers, 16 Id. 648. What interest such child has in its ancestor's estate, and how that interest is raised, see the cases cited supra, and notes to Marsellis v. Thalheimer, 21 Id. 66; Hall v. Hancock, 26 Id. 600.

EASEMENT.

HARRIS v. MILLER.

[MEIGS, 158.]

RIGHT OF PERMANENTLY OVERFLOWING THE LAND OF ANOTHER, is an interest in the soil itself.

AGREEMENT TO CONFER THE RIGHT to permanently flow lands is within the statute of frauds, and must, therefore, be in writing.

WHERE A CONTRACT, WHICH IS REQUIRED BY LAW to be in writing, is made with one of two partners, in his individual capacity, the other partner can not be sued for the consideration.

ASSUMPSIT. Plaintiff, Harris, had entered into a verbal agreement with Miller, and one Hayter, partners, whereby, in consideration that Hayter would confess judgment for one hundred dollars in favor of a creditor of plaintiff, and that Miller would stay it, he agreed to sell them certain timber, and grant them the right to back water upon his land. Harris and Hayter executed a memorandum of this agreement, but omitted to state therein anything in reference to Miller's staying the judginent.