respect to the race taking place elsewhere than at Newmarket or Black Hambleton. The act, being one which professes to take away penalties, should have a liberal construction. It is contended that the expression "place or places" ought to be understood with reference to places at which horse-races are usually held. Lord Eldon seems to have adopted that opinion in Whaley v. Pajot. That, however, was not a horserace, a race between two horses. A horse-race is, properly, where the speed of one horse is matched against the speed of another horse. Here, it appears to us on this record that the point to start from was the same - that the point to arrive at was the same. It was a horse-race, and not a mere wager. I think it may be fairly considered a horse-race within the 18 G. 2. c. 34. It was a trial of the strength and speed and vigour of the two horses. Upon the ground contended for, it might have been said that if it were part of the terms that each horse should take a leap before he started, the race would be illegal; yet so slight a variance would surely be imma terial. ERSKINE J. The language of Lord Eldon in Whaley v. Pajot throws a great deal of difficulty into the case. My brother Ludlow contends that the 3 & 4 Vict. c. 5., by repealing the 13 G. 2. c. 19., has made all horseracing illegal, or that, if any horse-race be still legal by force of the 18 G. 2. c. 34., this race does not come within the provisions of that statute. The object of the act of 3 & 4 Vict. c. 5. was, not to render horse-racing illegal, but to relieve parties who had laid themselves open to actions for penalties in consequence of some slight deviation from the regulations prescribed by the 13 G. 2. c. 19. The object of the late statute was rather to encourage horse-racing than to restrain it. It would therefore be a strange circumstance if we were obliged 1842. EVANS v. PRATT. 1842. EVANS v. PRATT. to hold that the effect of the act was to render all horse racing illegal; and we should not come to such a conclusion unless it is clearly marked by the statute. The 3 & 4 Vict. c. 5., however, while it repeals the clauses in the 13 G. 2. c. 19. which relates to horseracing, leaves the 18 G. 2. c.34. untouched. The question is, therefore, whether enough remains under the eleventh section of the 18 G. 2. c. 34. to legalise horseracing. I do not agree with my brother Ludlow that the sole object of the legislature in that enactment was, to relieve parties from penalties incurred under the 13 G. 2. c. 19. Then it is said that it is obvious that the 13 G. 2. contemplates races upon regular race-courses only; but, whatever may be the construction to be put upon that statute, we must give some effect to the language of the 18 G. 2. c. 34., where it is said that it shall be lawful to run any match for a prize not less than 50%. "at any place or places whatsoever." Ximenes v. Jaques was not a horse-race at all. It was no trial of speed between two horses. Here, there was a trial of speed between two horses. Whaley v. Pajot was more like a horse-race than Ximenes v. Jaques; but that case was not decided ultimately upon the point thrown out by Lord Eldon. It was, however, a mere wager to try the speed of two horses under skilful management against one, and not a race between two horses. It lies upon the defendant to shew that the contract which he has entered into is illegal. MAULE J. I am also of opinion that the judgment ought not to be arrested. The acts of parliament which have been referred to must be considered with reference to the general rules applied to the construction of statutes; and, so considered, I think that this race is a legal race. The statutes which made horse-racing illegal were the 16 Car. 2. c. 7. and 9 Ann. c. 14. The 13 G. 2. c. 19. s. 3. prohibited the starting of horses for races unless they carried certain proportionate weights, a provision, however, which does not seem to apply to horses that are not five years old. Sect. 5. provided that no horses should be started for races at other places than at Newmarket and at Black Hambleton, or otherwise than for prizes of the value of 50%. or upwards, and imposed certain penalties upon the contravention of these regulations. The cases exempted from penalties by this fifth section have been considered as legalised as against the former statutes. The 18 G. 2. c. 34. says, in express terms, that it shall be lawful for any person to run any match, or to start and run for any plate &c. of the value of 50l. and upwards, and at any weights whatsoever, and at any place or places whatsoever, without incurring, or being liable to, the penalties in the act of 13 G. 2. relating to weights, and in the same manner as might have been done if that act had never been made. It appears to me that by these words it was intended to relieve parties, not only from the penalties imposed by the 13 G. 2. c. 19., but also from any illegality created by the former statutes. I think the eleventh section of the 18 G. 2. c. 34. is to be read thus: "It shall be lawful for any person to run any match for 50l. or upwards, at any weights whatsoever, and at any place whatsoever, without incurring the penalties in the act of 13 G. 2. c. 19., and without incurring any other illegality, under any previous statute." If that be the true construction of this section, the repeal of the 13 G. 2. c. 19. will not have the effect of taking away the legality of any race which was legal before the passing of the repealing statute. Then the only question is, whether the eleventh section of the 18 G. 2. c. 34. extends to this case. As that statute is one which takes away penalties, it ought to be largely expounded. The object of the legislature throughout 1842. EVANS v. PRATT. 1842. EVANS v. PRATT. these enactments has been, to encourage the production of a strong and powerful breed of horses; and I think that this was a race calculated to further that object. The only doubt is raised by the language held by Lord Eldon C. J. in Whaley v. Pajot. The decision in that case merely goes to this, that a race of two horses against one is not a horse-race within the meaning of the sta tutes. Lord Eldon is reported to have said that "there seems to be much ground for arguing from the nature of the 16 Car. 2. and 9 Ann. that these acts ought to be construed strictly, in order to enforce the principle on which they are founded, namely, to prohibit all horseracing, and that the 13 & 18 G. 2., are, from their nature, to be so construed as to encourage the breed of horses, and to permit that species of horse-racing only called racing on the turf." Lord Eldon does not say to permit only "races on the turf," but "that species of racing." I see nothing, however, in the acts to require so narrow a construction; and I think it is not too much to say that the statutes extend to all races between two horses running at the same time from one point to another point. It cannot be doubted that such races were assumed to be legal when the statute of 3 & 4 Vict. c. 5. passed. Rule discharged. 1842. BAXTER V. GRAY and ABBOTT, Executors of Jan. 17. MARY BOSTOCK deceased. forbore to send in his ASSUMPSIT for work and labour done for the tes- A surgeon tatrix, and upon an account stated with her. Pleas: non assumpsit; and, secondly, payment by bill for medithe testatrix in her lifetime. Replication, traversing cines and such payment, and issue thereon. attendance to a deceased patient in her lifetime, under the ex pectation of a legacy. On her death, finding she had left him nothing, he made a claim At the trial, before Tindal C. J., at the Westminster sittings after last term, it appeared that the action was brought by the plaintiff, a surgeon and apothecary, to recover about 500l. from the defendants, as the executors of a Mrs. Bostock, (after giving credit for 33l. received on account), for medicines and attendance upon her for a period commencing in the year 1829 and ending in January 1840, about nine months previous to her death. The plaintiff had been on terms of great intimacy with Mrs. Bostock, visiting her daily, and occasionally rendering her surgical assistance. Having an expectation of a legacy, he had never sent in any been given of bill in her lifetime; but, finding that she had not left any underhim any thing by her will, he made the above claim upon the defendants. The Lord Chief Justice told the jury that if the plaintiff had furnished the medicines, and had attended upon the deceased on an understanding that he was to be paid only by a legacy, he was not entitled to recover. The jury having found a verdict for the plaintiff, damages 2177., Shee Serjt. now moved for a new trial, on the ground of misdirection. He contended that if there was a distinct expectation of a legacy on the part of the plaintiff, which clearly appeared upon the evidence, there on her executors. Held, that he was entitled to recover, no proof having standing be tween the parties that he was to be paid only by a legacy. |