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It is said that presumptions do not run backwards. But that depends on the case. Todd v. Rowley, 8 Allen, 51." The court held that there was no error committed. In McCulloch v. Dobson, in an action upon a covenant to keep in repair, contained in a lease of a silk mill and machinery, the court say: "Evidence as to the condition of machinery in a mill at a partícular date is competent, ordinarily, to show what its condition was at a date shortly before. It is not necessary that the witnesses should have seen the machinery at or before the time when its condition is to be ascertained. The fact that they did not examine or see the machinery at the very day, nor until some days or even months subsequent to the time in question, may affect the value, but not, ordinarily, the competency of the testimony." In Toland v. Paine Furniture Co.,1 10 the court say: "One, McKenzie, testified as to the condition of the stairs and the mats on the day of the accident at 4 o'clock, and on the Monday morning following. He testified that the condition was the same on Monday as on Saturday. The question then, is, whether a defective condition of things. found four hours after an accident, there being no evidence of any change in the meantime, as admissible to show the condition at the time of the accident. We have no doubt that the evidence was admissible."

Columbia, Mo.

JOHN D. LAWSON.

9133 N. Y. 114, 124, 30 N. E. Rep. 641 (1892). 10 61 N. E. Rep. 52 (1901) (Mass).

LEGAL EFFECT OF CHANGE OR ATTEMPTED CHANGE IN CONTRACT OF INSURANCE BETWEEN A MUTUAL INSURANCE SOCIETY OR ASSOCIATION AND A MEMBER.

I. When Change is Binding on Members and Beneficiaries.

(a.) In Respect to Decrease in Disability Benefits. (b.) In Respect to Decrease of Death Benefits. (c.) In Respect to Increase in Assessments. (d.) In Respect to Occupation of Member or Increase of Risk.

(e.) In Respect to Suicide of Member.

(f.) Generally.

II. When Change is not Binding on Members and Beneficiaries.

(a.) In Respect to Decrease in Disability Benefits. (b.) In Respect to Decrease in Death Benefits. (c.) In Respect to Increase of Assessments.

(d.) In Respect to Occupation of Member or Increase of Risk.

(e.) In Respect to Suicide of Member. (f.) Generally.

I. When Change is Binding on Members and Beneficiaries.-(a.) In Respect to Decrease in Disability Benefits.-The right to sick benefits in a mutual society, under a contract reserving the right to make change therein, is not a vested right even after sickness has taken place and the member is actually drawing the benefits provided by the contract, and the society may, in the manner provided by its laws for changing the contract, reduce the amount recoverable by the member either to a stipulated sum as its total liability or by a flat reduction of the sum named as weekly disability benefits.1

(b.) In Respect to Decrease of Death Benefits.-The right of the beneficiary of a member of a mutual society to a death benefit, under a contract reserving the right to make changes therein, is not a vested right to the maximum sum promised to be paid, and the society may, in the manner provided by its laws for changing the contract, reduce the amount recoverable by the member's beneficiary before the same has become a claim by the death of the member, either by changing the classification of its members, which would result in a depletion of a certain class and a consequent inability of the society to collect a sufficient amount by assessment upon the depleted class to make up the maximum sum promised to be paid, or by a law which simply makes the maximum sum payable less than the original maximum sum promised.2

(c.) In Respect to Increase in Assessments.-The right of a mutual insurance society or association to increase the rate of assessments in force at the time the membership of a certificate-holder commenced has been upheld, where the society reserved the

1 Stohr v. San Francisco Musical Fund Soc., 82 Cal. 557, 22 Pac. Rep. 1125; Poultney v. Bachman, 31 Hun, 49; Fugure v. Mutual Society St. Joseph, 46 Vt. 362; Paine v. Societe St. Jean Baptiste, 172 Mass. 319, 52 N. E. Rep. 502; Smith v. Galloway (1898), 1 Q. B. 71.

2 Duer v. Supreme Council Order of Chosen Friends, 21 Tex. Civ. App. 493, 52 S. W. Rep. 109; Brundin v. Supreme Council Order of Chosen Friends, 13 App. Div. 147, 42 N. Y. Supp. 1043; Su. preme Lodge Knights of Pythias v. Knight, 117 Ind. 489, 20 N. E. Rep. 479.

right to change the contract of insurance existing between it and the member.3

(d.) In Respect to Occupation of Member or Increase of Risk.-The right of a mutual insurance society or association to change the contract between it and a member, so as to relieve the society from liability for a loss that would have been covered by the original compact, is enforceable, where the member agreed in his application to observe and be governed by all the conditions of the charter and by-laws of the society as they then existed, and any change that might thereafter be made in the same, and a copy of such by-law, changing the society's liability, was immediately after its passage given to the member, who made no objection, but continued his membership, and attended the annual meeting of the society at which the by-law was read; and an association or society, so reserving a right to change the contract, may defeat a beneficiary's right to recover on a certificate by changing its by-laws so that an occupation in which the member was engaged at the time of obtaining his membership is prohibited by a subsequent by-law.*

(e.) In Respect to Suicide of Member.A mutual insurance society or association, reserving the right to change the contract existing between it and a member, may defeat the beneficiary's action to recover on the certificate, where the member committed suicide, though under the original contract the suicide of a member was not made a cause for forfeiture.5

(f) Generally.-The right of fraternal "benefit insurance orders and assessment associations to change the contract existing

8 Fullenwider v. Supreme Council Royal League, 180 Ill. 621, 54 N. E. Rep. 485; Haydel v. Mutual Reserve Fund Life Assn., 98 Fed. 200 (U. S. D. C., E. D. Mo.), affirmed 104 Fed. Rep. 718.

4 Bogards v. Farmers' Mutual Ins. Co., 79 Mich. 440, 44 N. W. Rep. 856; Schmidt v. Supreme Tent of the Knights of the Maccabees, 97 Wis. 528, 73 N. W. Rep. 22; Ellerbe v. Faust, 119 Mo. 653, 25 L. R. A. 149; People v. Grand Lodge A. O. U. W., 67 N. Y. Supp. 330; Moerschbaecher v. Supreme Council Royal League (Ill.), 59 N. E. Rep. 17.

5 Supreme Commandery K. of G. R. v. Ainsworth, 71 Ala. 449; Supreme Lodge Knights of Pythias v. Kutscher, 179 Ill. 340, 53 N. E. Rep. 620; Supreme Lodge Knight of Pythias v. Trebbe, 179 Ill. 348, 53 N. E. Rep. 730; Daughtry v. Knights of Pythias, 48 La. Ann. 1203, 20 S. W. Rep. 712; Supreme Lodge K. of P. v. La Malta, 95 Tenn. (11 Pick.) 157, 31 8. W. Rep. 493, 30 L. R. A. 838; Reynolds v. Supreme Council, etc., 18 Lanc. L. R. 125, 10 Pa. Dist. Rep. 528.

between themselves and their members has been sustained in numerous adjudications." But the denial of the right meets with greater favor in the courts, and they have sought out and upheld constructions, estoppels and waivers which have prevented the enforcement of changes, or attempted changes, in such contracts detrimental to the right of recovery by the insured or beneficiary. The tendency of the courts is clearly shown to be to prevent changes in contracts which affect the pecuniary rights of policy holders." II. When Change is not Binding on Members and Beneficiaries.-(a.) In Respect to Decrease of Disability Benefits.The right to sick benefits in a mutual society, under a contract not shown to havé contained a reservation of power in the society to change the same, becomes vested upon the sickness of the member entitling him to benefits under the original by-law,

6 Bogards v. Farmers' Mut. Ins. Co., 79 Mich. 440 44 N. W. Rep. 856; Bollman v. Supreme Lodge K. of H. (Tex.), 53 S. W. Rep. 722; Bowie v. Grand Lodge, etc., 99 Cal. 392, 34 Pac. Rep. 103; Brower v. Supreme Lodge N. R. A., 74 Mo. App. 490; Brundin v. Supreme Council O. C. F., 42 N. Y. Supp. 1043, 13 App. Div. 147; Byrne v. Casey, 70 Tex. 247, 8 S. W. 38; Daughtry v. Supreme Lodge K. of P., 48 La. Ann. 1203; Duer v. Supreme Council, O. C. F., 21 Tex. Civ. App. 493, 52 S. W. Rep. 109; Ellerbe v. Faust, 119 Mo. 653, 25 S. W. Rep. 390; French v. Society Select Guardians, 51 N. Y. Supp. 675; Fugure v. Mutual Society St. Joseph, 46 Vt. 362; Fullenwider v. Supreme Council Royal League, 180 Ill. 621, 54 N. E. Rep. 485; Hadley v. O. F. B. A. (Mass.), 54 N. E. Rep. 345; Hass v. Mutual Relief Assn., 118 Cal. 6, 49 Pac. Rep. 1056; Haydel v. Mutual Reserve Fund Life Assn., 98 Fed. Rep. 200; Hughes v. Wisconsin O. F. M. L. I. Co., 98 Wis. 292; In re Supreme Legion Select Knights of Canada, 18 Can. L. T. 380; Loeffler v. Modern Woodmen, 100 Wis. 79, 75 N. W. Rep. 1012; McCabe v. Father Matthew T. A. Society, 24 Hun, 149; McKean v. Riddle, 181 Pa. 361, 37 Atl. Rep. 52; MacDowell v. Ackley, 93 Pa. 277; Masonic M B. A. V. Severson, 71 Conn. 719, 43 Atl. Rep. 192; Montgomery County F. M. I. Co. v. Milner, 90 Iowa, 685, 57 N. W. Rep. 612; Pain v. Societe St. Jean Baptiste, 172 Mass. 319, 52 N. E. Rep. 502; Poultney v. Bachman, 31 Hun, 49; Robinson v. Templar Lodge No. 17, I. O. O. F., 117 Cal. 370, 49 Pac. Rep. 170; Schmidt v. Supreme Tent Knights of Maccabees, 97 Wis. 928, 73 N. W. Rep. 22; Smith v. Galloway (1898), 1 Q. B. 71; State Mo. v. Grand Lodge, 70 App. 456; Stohr San Francisco Musical Fund Society, 82 Cal. 557, 22 Pac. Rep. 1125; Supreme Commandery K. of G. R. v. Ainsworth, 71 Ala. 449; Supreme Lodge K. of P. v. Knight, 117 Ind. 489, 20 N. E. Rep. 479; Supreme Lodge K. of P. v. Kutscher, 170 Ill. 340, 53 N. E. Rep. 620; Supreme Lodge K. of P. v. Trebbe, 179 Ill. 348; West v. Grand Lodge, 14 Tex. Civ. App. 471.

V.

7 The following cases, illustrate the construction the courts will adopt of an amended by.

and an amendment to the by-laws after his sickness and after the society had paid the members benefits therefor is invalid, such action of the society being declared to be repudiation of debts and will not be allowed by the courts, the member, in such case, having

law or change in a contract to avoid a forfeiture of the whole or any part of a benefit. Becker v. Berlin Benefit Society, 144 Pa. 232; Benton v. Brotherhood of Ry. Brakemen, 146 Ill. 570, 34 N. E. Rep. 938; Carnes v. Iowa Traveling Men's Assn., 106 Iowa, 281, 76 N. W. Rep. 683; Chadwick v. Order of T. A., 56 Mo. App. 463; Cohen v. Supreme Sitting O. I. H., 105 Mich. 283; Courtney v. U. S. Masonic Ben. Assn. (Iowa), 53 N. W. Rep. 238; Coyle v. Father Matthew Soc., 29 Hun, 674, 17 N. Y. Wk. Dig. 17; Ebert v. Mutual Reserve Fund Life Assn. (Minn.), 83 N. W. Rep. 506; Farmers' Loan & T. Co. v. Aberle, 19 App. Div. 79, 46 N. Y. Supp. 10; Fire Ins. Co. v. Connor, 17 Pa. 136; Graftstrom v. Frost Council No. 21, O. C. F., 19 Misc. Rep. 180, 43 N. Y. Supp. 266; Grand Lodge A. O. U. W. v. Reneau, 75 Mo. App. 402; Grand Lodge A. O. U. W. v. Sater, 44 Mo. App. 445; Gund. lach v. German Mechanics' Assn., 4 Hun, 341, 49 How. Pr. 190; Hale v. Equitable Aid Union, 168 Pa. 377; Hirsch v. U. S. Grand Lodge, O. B. A., 78 Mo. App. 358; Hobbs v. Iowa Mutual Ben. Assn., 82 Iowa, 107, 11 L. R. A. 299; Hogan v. League, 99 Cal. 248, 33 Pac. Rep. 924; Hussey v. Gallagher, 61 Ga. 86; Hutchinson v. Supreme Tent, 22 N. Y. Supp. 801; Hysinger v. Supreme Lodge K. & L. of H., 42 Mo. App. 627; Illinois Com. Men's Assn. v. Wahl, 68 Ill. App. 411; Jarman v. Knights Templars & M. L. I. Co., 95 Fed. Rep. 70, 28 Ins. L. J. 874; Langdon v. Mass. Ben. Assn., 166 Mass. 316, 44 N. E. Rep. 226; McNeil v. Southern Tier Mas. Relief Assn.. 40 App. Div. 581, 58 N. Y. Supp. 119; Margesson v. Mass. Ben. Assn., 165 Mass. 262, 42 N. E. Rep. 1132; Maynard v. Locomotive Eng. M. L. & A. Ins. Assn., 16 Utah, 145, 51 Pac. Rep. 259; Metropolitan Safety Fund Acc. Soc. v. Windover, 137 Ill. 417, 27 N. E. Rep. 538; Morris v. Farmers' Mutual F. Ins. Co., 63 Minn. 420, 65 N. W. Rep. 655; Morrison v. Wisconsin Odd Fellows M. L. Ins. Co., 59 Wis. 162; Mutual Aid & I. Soc. v. Monti, 59 N. J. L. (30 Vrom.), 341, 36 Atl. Rep. 666; Mutual Endowment Assessment Assn. v. Essenden, 59 Md. 463; Northwestern Ben. & Mut. Aid Assn. v. Warner, 24 Ill. App. 357; Pellazzione v. Society, 16 Cin. Law Bull. 27; Pokrefky v. Detroit Firemen's Fund Assn. (Mich.). 80 N. W. Rep. 240; St. Patrick's Male Ben. Soc. v. McVey, 92 Pa. 510; Seiverts v. National Ben. Assn., 95 Iowa, 710, 64 N. W. Rep. 671; Starling v. Supreme Council R. T. of T., 108 Mich. 440, 66 N. W. Rep. 893; Stewart v. Lee Mutual, etc. Assn., 64 Miss. 499, 1 South. Rep. 743; Strauss v. Mutual Reserve Fund Life Assn. (N. Car.), 36 S. E. Bep. 352; Street v. Mutual Reserve Fund Life Assn. (N. Car.), 36 S. E. Rep. 1024; Supreme Lodge K. of P. v. LaMalta, 95 Tenn. 157, 30 L. R. A. 838; Supreme Lodge K. of P. v. McLennan, 171 Ill. 417, 49 N. E. Rep. 530; Supreme Lodge K. of P. v. Stein, 75 Miss. 107, 21 South. Rep. 559; Supreme Tent Knights of Maccabees v. Volkert (Ind.), 57 N. E. Rep. 203; Weiler v. Equitable Aid Union, 92 Hun, 277; Wheeler v. Supreme Sitting O. I. H., 110 Mich. 437, 68 N. W. Rep. 229; Wist v. Grand Lodge. A. O. U. W., 22 Oreg. 271, 29 Pac. Rep. 610; Yelland v. Yelland, 25 Ont. pp. 91.

become a creditor of the society whose rights cannot be swept away by such a scheme.

(b.) In Respect to the Decrease of Death Benefits. The right of a mutual insurance society to change its by-laws so that $1,500 will be the limit of its liability on the death of a member cannot be enforced where, under the original by-law, the beneficiary would be entitled to recover five dollars for each member, though such society had the right, under the act under which it was organized to adopt by-laws, by its trustees, "who may change them at pleasure," it appearing in such case that more than a majority of all the members of the society protested in writing against the change, and that among those protesting was plaintiff's decedent, nor is such change valid where it is not shown that the members assented thereto.9

(c.) In Respect to Increase in Assessments. The right of a mutual insurance association, reserved in the contracts between it and its members, to change the same, including a special provision that the board of trustees shall have the right to fix the number and amount of assessments, will not enable such an association to so arrange its rates of assessments that a larger proportional burden falls upon a part of its membership than upon the others, as where the association places its membership into two classes upon one of which the assessments are made at the "attained age" of that class and at the "age at entry" of the other class. 10

(d.) In Respect to Occupation of Member or Increase of Risk.—The right of a mutual insurance society, reserved in the contract between it and its members, to change the

8 Becker v. Berlin Benefit Society, 144 Pa. 232; Berlin v. Eureka Lodge (Cal.), 64 Pac. Rep. 254. Assn.

9 Pokrefky, v. Detroit Firemens' Fund (Mich.), 80 N. W. Rep. 240; Getz v. Supreme Council A. L. of H. (C. C.), 109 Fed. Rep. 261; Langan v. Supreme Council A. L. of H., 70 N. Y. Supp. 663; Hipple v. Supreme Ruling Fraternal Mystic Circle, 10 Pa. Dist. Rep. 317.

10 Ebert v. Mutual Reserve Fund Life Assn. (Minn.), 83 N. W. Rep. 506; Strauss v. Mutual Reserve Fund Life Assn. (N. Car.), 36 S. E. Rep. 352; Hill v. Mutual Reserve Fund Life Assn. (N. Car.), 36 S. E. Rep. 1023; Street v. Mutual Reserve Fund Life Assn. (N. Car.), 36 S. E. Rep. 1024. Rehearings in each of above cases have resulted in a reaffirmance of the opinions cited. Also see Covenant Mutual Life Assn. v. Kentner (Ill.), 58 N. E. Rep. 966; Covenant Mutual Ben. Assn. v. Baldwin, 49 Ill. App. 203; Rowell v. Covenant Mutual Life Assn., 84 Ill. App. 304.

same, will not permit it to enforce a forfeiture of a member's certificate as against the beneficiary on account of a by-law subsequently passed or previously in force prohibiting its members from engaging in a certain occupation, where the society had knowledge of the member having engaged in the prohibited occupation and collected dues and assessments from him, but took no action toward suspending him therefor, though the by-laws provide that the engaging in such occupation shall ipso facto cause a suspension of membership.11

(e.) In Respect to Suicide of Member.The right of a mutual insurance society, reserved in the contract between it and its members, to change the same, will not permit it to enforce a forfeiture of a member's certificate as against the beneficiary on account of a rule or by-law adopted by a body known as its board of control, but not authorized by the contract to make a change in it, declaring that the suicide of a member, whether sane or insane, shall forfeit the right of the beneficiary to recover on the certificate, prior to the adoption of such by-law by the body of the society empowered to change the by-laws or contract, nor will every change in this respect by an authorized body be enforced by the courts. 12

(f.) Generally.-The denial of the right of fraternal insurance orders and assessment associations to change the contract existing between themselves and their members meets with greater favor in the courts than the upholding of it, especially where pecuniary rights are involved.

Indianapolis, Ind. ROBERT J. BRENNEN.

11 Supreme Tent Knights of Maccabees v. Volkert, 25 Ind. App. 627, 57 N. E. Rep. 203; Hobbs v. Iowa Mutual Benefit Assn., 82 lowa, 107, 47 N. W. Rep. 983, 11 L. R. A. 299

12 Supreme Lodge Knights of Pythias v. Stein, 57 Miss. 107, 21 South. Rep. 559; Supreme Lodge Knights of Pythias v. McLennan, 171 Ill. 417, 49 N. E. Rep. 417; Supreme Lodge Knights of Pythias v. LaMalta, 95 Tenn. 157, 30 L. R. A. 838; Northwestern, etc. Assn. v. Wanner, 24 Ill. App. 357; Knights Templars, etc. Co. v. Jarman, 101 Fed. Rep. 638: Sov

action thus promoted by his act, such party becomes particeps criminis, and cannot recover in a suit for the money loaned or advanced under such circumstaces.

MCFIE, J.: Appellee brought suit in the court below for the sum of $105, and interest at 6 per centum, alleged to be due thereon. Jury being waived, trial was had before the court, May 25, 1900, and judgment was rendered for the plaintiff for the sum of $105 and costs. From this judgment an appeal was taken to this court by the defendant. The complaint is in the usual form, and alleges money loaned to the defendant, and the answer is general issue. The court below made no findings of fact, so far as the record discloses, but the judgment recites that the court found the issues for the plaintiff. The facts disclosed by the record wholly fail to sustain the judgment of the court below in this case. The plaintiff below, appellee in this case, seeks to recover from the defendant $105 and interest, upoa the ground that he loaned the defendant that amount to pay an existing indebtedness to other parties, and while upon direct examination, he testified to this effect, upon cross-examination he admits that this was the amount found due him upon a settlement at the close of a night's gambling at cards, in which plaintiff, defendant, and two others participated. He also admits that the money advanced by him was used in the game, thus destroying his claim that the money was used to pay a pre-existing indebtedness to third parties. These are admissions against interest, which bind the appellee, so that his own testimony destroys his claim that the transaction was a loan, and sustains the defense that it was a gambling transaction, in violation of the statute. and for which there could be no recovery. There were only two additional witnesses who testified in the cause, both of which testified that the money was used in the game, and the money sued for was the amount found due on settlement, at the end of the game. The defendant denied that he borrowed the money, but admits that when he and the plaintiff settled at the end of the game the amount sued for was the balance due the plaintiff. Upon these facts, it is idle to call the transaction a loan, in a legal sense. It was nothing more nor less than a gambling transaction, in violation of the statute, and any implied contract or obligation to pay was not a legal obligation, enforceable in the courts of this territory. To call this matter a loan is clearly a device to avoid the provisions of the statute concerning gambling, and the law will not tolerate subterfuges for this purpose. As was said in 14 Am. &

erred in rendering judgment in favor of the plaintiff, Appleton, and against the defendant, Maxwell." As to the law of this case there is little, if any, controversy between counsel for appellant and appellee. At common law certain wagering contracts were held valid, and the early English precedents sustained such contracts, with few exceptions. Some of the American courts followed the early English precedents, but while these early English precedents were in many instances followed, regret was expressed on the part of some of the judges that they felt constrained, out of respect for precedent, to sustain such a doctrine. After the enactments of the statute of Car. II. and 9 Anne, the doctrine announced by the English courts based upon these statutes was entirely different from that announced in the early cases, and gaming, gambling, and wagering contracts were held void by these courts. Owing to the regret expressed by different courts that they felt constrained to sustain the doctrine of the early English decisions in deference to precedent, many years ago, and prior to the enactment of statutes by the different states, the courts began to repudiate the doctrine of the common law as to gambling and wagering contracts; and upon examination it will be found that the New England states, Pennsylvania, South Carolina, Massachusetts, Vermont, Minnesota, and other states, repudiated the commonlaw doctrine. In the case of Amory v. Gilman, 2 Mass. 6, the court said: "It would seem a disgraceful occupation for the courts of any country to sit in judgment between two gamblers, in order to determine which was the best calculator of chances, or which had the most cunning of the two." A leading case, and one which gives the reason for the repudiation of the common-law rule more fully than the others, is the case of Wilkinson v. Tonsley, 16 Minn. 299 (Gil. 263), 10 Am. Rep. 139, in which case the authorities are collated and examined, which states the case as follows: "From the foregoing citations from the statutes which of late years have been enacted in England against bets and wagers, as well as from common knowledge of the prevailing public sentiment on this subject, we think the remark found in 2 Smith, Lead. Cas. (6th Am. Ed.) 343, that the moral sense of the present day regards all gaming or wagering contracts as inconsistent with the interests of the community, and at variance with the laws of morality,' is abundantly satisfied. In determining, then, what is the law upon this subject here, we are free to lay down such rules as are most in accordance with general principles, and with the best-considered and most wholesome views which have been expressed by other tribunals. * In announcing a rule where none has been before announced, the question is whether we shall blindly adopt a doctrine which is admitted to have been originally wrong, both in morals and in laws, and from which the courts of England would gladly escape were they not hampered by

* * *

* *

precedents, or whether we shall give full scope to the broad principle that contracts contrary to good morals and sound public policy are invalid, and that, therefore, wagers and contracts of that character are not to be sustained. We have no hesitance in adopting the latter course." Numerous other cases might be cited to the same effect, but it is not deemed advisable to multiply them here. In 1876 this court was called upon to consider this subject in the case of Joseph v. Miller, 1 N. M. 621. This was a suit to collect a note, the consideration of which was a bet upon a horse race. The court, in an elaborate opinion by Associate Justice Bristol, sustained the lower court in holding that the wager was not a valid consideration for a contract, and, referring to the case of Wilkinson v. Tousley, held that the collection of the note could not be enforced in the courts of this territory. "Being untrammeled by precedents, this being the first adjudication of the question in this territory, we do not hesitate to lay down the same rule as to wagering contracts here. Not only do we hold that wagering contracts are void on sound principles of law, as being opposed to public policy and good morals, but we hold, also, that contracts of this kind are void under the statute. Section 4 of chapter 36 (page 246), of the Complied Laws of New Mexico, provides that 'all judgments, securities, bonds, bills, notes, or conveyances, when the consideration is money or property won at gambling, or at any game or gambling device, shall be void,' etc. The word 'gambling' is a word of very general application, and is not restricted to wagering upon the result of any particular game or games of chance. In the adjudicated cases on the subject, we find that judges often have applied this word indiscriminately to wagering of all kinds. We are unable to discover any distinction, in general principles, between the various methods that may be adopted for determining by chance who is the winner and who is the loser of a bet, -whether it be by throwing dice, flipping a copper, turning a card, or running a horse race. In either case, it is gambling. This is the popular understanding of the term 'gambling device,' and does not exclude any scheme, plan, or contrivance for determining by chance which of the parties has won and which has lost a valuable stake. That a horse race, when adopted for such a purpose, is a 'gambling device,' there can be no doubt."

It will thus be seen that this court, as early as 1876, announced the doctrine that contracts originating in gambling devices of all kinds were contrary to public policy, and would not be enforced by the courts. But the court in the same case also declares that the same are void under the statute of this territory which was in force at the time this decision was rendered. In addition to the provisions of the statute quoted by the court in the case of Joseph v. Miller, we find that numerous provisions have been added to the statute, all tending to destroy contracts or obli

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