contingent remainder of a pure fee, which could not merge in one that was conditional. In reply it was faid for the plaintiff, that Catherine took a defcendible intereft like a contingent remainder in fee, which upon her death, until the contingency happened, defcended to George her grandfon, and merged in his fee, which was not a base fee. Upon the first argument the court broke the cafe. Willes C. J.-It may be proper to fay fomething by way of breaking the cafe; but I would not be understood to be bound by any opinion I may now give, as it is to be argued again. It was candid in my brother Poole to admit that this is a good executory devife. It certainly is fo; and they are now settled known eftates tranfmiffible, and like to (though they are not) contingent remainders. But brother Poole for the plaintiff infifts, that although the eftate is devifed to George the grandfon and his heirs upon condition, yet that it fhall defcend to him as if no condition had been mentioned. But I take it to be certain that it did not defcend at the time of the death of the teftator, but is devised to him upon condition that he and his heirs fhall have it in cafe he lives to 21, or leaves iffue; but if he does not, then the teftator's mother and her heirs shall take; it does not say "living the mother:" and as to what is faid that here is a merger, there never fhall be a merger to hurt another. Does the plaintiff claim under the firft devife? That is gone; for George the devifee died under age and without ifue. If plaintiff claims under the executory devife, the must take as heir to Catherine, if at all; and that she cannot do, because Prifcilla Larmer is not of her blood. Clive J.-I would be understood not to be bound by my prefent opinion. The leffor of the plaintiff claims by defcent; and whoever does fo, as hath been rightly infifted upon, must be of the blood of the first purchaser. The teftator having carved out his whole eftate in this manner, has thereby broke the defcent. If Catherine had furvived her grandfon fhe would have been a purchafer, for fhe would have taken it by devife from her fon, and there would have then been no doubt at all but it would have gone to the defendant her fifter; and I think it is the fame thing notwithstanding fhe died before her grandfon; and there can be no merger where the intent of the parties appears that the estate fhould not merge. Lewis Bowles's cafe, 11 Rep. 80. Fees Fees are every day in abeyance, as a remainder after an estate for life to the right heirs of 7. S. I do not fay a freehold can be in abeyance. The eftate to Catherine feems to me to be the greater eftate, and could not merge in that given to her grandfon. Birch J.-The teftator has not faid any thing about the time of the death of Catherine; and as he has not, we cannot. Here is an abfolute executory devife in fee to Catherine, which must take effect in her or her heir on the death of her grandfon under age and without iffue; and I am of opinion with my Lord Chief Juftice, and my brother Clive. Bathurst J.-I fhall be glad to have this matter argued again, because I think the fon took by defcent and not by the will. Suppofe the devife had been to Catherine after the death of George the teftator's fon under age and without ifsue, he would then certainly have taken by defcent until the contingency had happened. Suppofing then the fon in by defcent, I am inclined to think his grandmother's intereft or eftate fhall defcend to him, and he shall be in of a better estate; viz. a pure fee, which shall defcend to his heirs ex parte paterna. This cafe was argued a second time in Hilary term 29 Geo. 2., but little or nothing new was faid upon it. In Eafter term 29 Geo. 2. the court were all agreed, and the Chief Justice was ready to deliver their opinion, but deferred it, the parties being trying to make an end by way of accommodation. They were all of opinion for the defendant, ut audivi. MICHAELMAS TERM, 30 Geo. II. 1756. a game within the must appear at fuch game, or eife a wager. laid upon his Lynall verfus Longbothom. C. B. A footrece Middlefex. THOMAS Longbothom, late of the parish of Saint Andrew Holbourn in the county of Middlefex, flat. 9 Ann. fhoemaker, was fummoned to anfwer Thomas Lynall of a plea against gam- that he render to the faid Thomas Lynall the fum of 47% of lawing Buttful money of Great Britain, which he owes to the faid Thomas that a man Lynall, and unjustly detains from him, &c.; and whereupon the was playing faid Thomas Lynall, by William Pryor Johnfon his attorney, fays, for that the faid Thomas Longbothom after the first day of May in the year of our Lord 1711, to wit, on the 11th day of November above 101, in the year of our Lord 1754, at Westminster in the county aforefaid, received to the ufe of the faid Thomas Lynall the fum of 47, being fo much money loft at one time by the faid Thomas Lynall to the faid Thomas Longbothom within the space of three months next before the commencement of this fuit, by betting on the fide of one John Clarke, at a certain game called a foot-race, and which money fo loft before the commencement of this fuit was paid to the faid Thomas Longbothom the winner thereof, whereby and by force of the ftatute lately made for the better preventing exceffive and deceitful gaming, an action hath accrued to the faid Thomas Lynall to demand and have of the faid Thomas Longbothom, according to the form of the faid ftatute, the faid fum of 471. fo loft as aforefaid; yet the faid Thomas Longbothom, although often requested, hath not paid to the faid Thomas Lynall the faid 471. or any part thereof, but to pay the fame to him hath hitherto refufed, and doth yet refuse, whereupon the faid Thomas Lynall faith that he is injured, and hath damage to the value of 50%.; and therefore he brings this fuit, &c. The defendant pleaded nil debet per patriam, which issue came on to be tried before Lord Chief Juftice Willes at the last sitting in Eafter term 1755. The facts proved at the trial on the behalf of the plaintiff, and upon which he relied to fupport his declaration, were, That on the the 2d day of November 1754, the plaintiff laid a wager with the defendant of 471. to 291. that John Clarke in the declaration mentioned could not, on that day, run four miles in 21 minutes and an half that the plaintiff then depofited the 47. in the hands of one Thomas Cannon, as the stakeholder of that wager, and at the fame time the defendant depofited 297. in the fame hands, which fums were to be paid to the winner of the wager; that the faid Clarke did, on that day, run the four miles within 21 minutes and an half, and that thereupon the faid Thomas Cannon, on the fame day, paid the 471. fo depofited by the plaintiff, to the defendant Longbothom. On the part of the defendant it was infifted by his counsel at the trial, that the plaintiff had not proved his declaration, that this running by John Clarke was not a foot-race, as described in the declaration; that it was not a game within the ftat. 9 Ann. c. 14., upon which the plaintiff had founded his action; and that this wager was not a betting on the fide or hand of any perfon playing at any game or games within that ftatute, and therefore the plaintiff was not entitled to a verdict upon this declaration. Upon thefe objections there was a verdict for the plaintiff, fubject to the opinion of this court, upon these three points; viz. ift, Whether the running by Clarke alone was properly a footrace, as laid in the declaration? 2d, Whether fuch running be a game within the statute 9 Ann. c. 14.? 3d, Whether the wager was or was not a betting on the fide or hand of any perfon playing at any game or games within the faid ftatute? This cafe was argued in laft Eafter term by Serjeant Poole for the plaintiff, and Serjeant Hewitt tor the defendant, and in this term by Serjeant Willes for the plaintiff, and Serjeant Prime for the defendant. For the plaintiff it was faid, that John Clarke's running against Serjeant time was a foot-race, and it is well known that a fingle horfe Poole. has frequently run alone for the king's plate, which is ftill called a horfe-race, though he runs alone. 2dly, That a foot-race is a game within the ftat. 9 Ann. c. 14., though it is not mentioned therein, for the words, other game ar games, fhall relate to games or plays in former ftatutes againft gaming; and foot-races are mentioned in the ftat. 16 Car. 2. c. 7. D 3 between Serjeant between Goodburn and Marley, 2 Stra. 1159. horse-races were held to be within the ftatute 9 Ann. though not mentioned therein. 3dly, If this was a foot-race, and a foot-race be within the ftat. 9 Ann. there is no doubt but the defendant betted on the fide of Clarke, who ran against time. For the defendant it was admitted that a foot-race is within the flat. 9 Ann. and has been fo determined; and it was faid by the defendant's counsel, and agreed by the court, that although here were three queftions made by the cafe for the confideration of the court, yet in truth they were all reducible to, and contained in this fingle question; viz. Whether the wager was a betting on the fide of any perfon playing at a game called a footrace? And they infifted that it was not, for it does not appear by the cafe but that Clarke might be running merely for his own diverfion, or that he himself was at all concerned in the wager, or knew any thing of it; neither is it laid in the declaration, or ftated in the cafe, that Clarke was playing at a game called a foot-race; fo that if there had been no cafe ftated, the judgment must have been arrested upon this declaration; for to bring it within the statute, it must be a betting on the fide of a perfon or perfons playing, and so it ought to have been laid. Upon the first argument the court broke the cafe. Willes C. J.-Neither of my brothers are diftanced, fo a fecond heat may be run, and therefore I give no opinion. As at prefent advised, I am inclined to think that this is not a footrace as laid in the declaration, for Clarke might run for his diverfion or exercise, and it does not appear he contended for any bet with any body, or against time; and Clarke can never be faid to be playing unlefs it had been laid in the declaration, or ftated in the cafe, that he was playing; and we can intend nothing, for I think this is a penal law: there is no doubt but horfe-races are within the flat. 9 Ann. according to Stra. 1259. who is a faithful reporter; and foot-races muft alfo be fo too, for they are mentioned in ftat. 16 Car. 2. to which the flat. 9 Ann. must relate. Clive J. and Birch J. to the like effect. Bathurst J.-Courts of juftice have done very right in putting a liberal conftruction upon thefe ftatutes againft gaming, and if it were poffible, I fhould be for bringing this cafe within the ftat. 9 Ann. One perfon running alone against time may be properly called a foot-race, as well as one horfe ftarting alone to be an horfe race, which has often been the cafe; but as it does |