case hussey against jacob to a action bring by the payee against the acceptor  of a bill of exchange for l a plea that the drawer and the plaintiff play at  hazard that the drawer lose at one time and meeting the say l and that the  bill be draw and accept as a security for the money so lose and that by car c  all security whatsoever for money above l lose at one time upon tick be void  be good for such plea do not amount to the general issue and the defendant  have election to give it in modern er p evidence under that issue or to plead  it special see stram SC salk S c Carth S c holt S c Mod S c Com S c ld ray S c  ld ray this be a action on the case bring upon a bill of exchange against the  acceptor wherein the plaintiff set forth that the bill be draw by my Lord  chandois upon the defendant for the payment of one hundred and twenty guinea  to the plaintiff then he set forth the custom of merchant and that both the  drawer the plaintiff and the acceptor be person use trade and merchandise and  that the defendant have not pay the money c the defendant by protestation say  that neither my Lord chandois or the plaintiff be person use merchandise at  the time when the bill of exchange be draw or at any time afterward then he  plead that after the make the statute car c of game and before the say bill be  give my Lord chandois and the plaintiff do play at dice at a game call hazard  and that my lord at one time and meeting do lose one hundred and twenty guinea  to the plaintiff and that for secure the payment thereof he do draw the bill  of exchange upon the defendant who accept the same and that by virtue of the  say statute car c the acceptance be void in law the plaintiff demurrer special  and show for cause that this plea amount to the general issue and no more the  defendant join in demurrer for the better understanding this case it may be  necessary to state that some part of the statute car c enact that if any  person shall play other than for ready money and shall lose above one hundred  pound at one time upon ticket or credit the loser shall not be bind to pay it  but the contract for the same and all judgement c and other act and deed and  security whatsoever for such money shall be void those who argue against this  plea say first that the statute of game can be plead to this action because it  be no answer to the custom of merchant so that the declaration be true  notwithstanding this plea modern second it be not allege that the money be  lose upon ticket or credit or that it be not pay down at that time when it be  lose for in such case only the contract be void now by this way of plead the  defendant have not so much as bring himself within the purview of the statute  which be make against deceitful disorderly and excessive game and therefore  shall not have the benefit of the consequential part of the law which be the  avoidance of the contract but this statute do not binder the plaintiff from  his action because he be a three person and not concern in the game may  promise the payment of the money upon a good consideration as if a man lose  above a hundred pound at one sit and give judgement for the payment and a  three person promise the winner in consideration he will not take out  execution within a year that he will pay the money this be a good promise and  will bind he because it may have a reasonable beginning for probable the loser  will not plead to the to know facias or take any advantage of the statute so  if a win above one hundred pound of b and at the same time be indebt to c in  the like sum and then both a and b become bind to c for the payment of the  money it be a good bind and not to be avoid by the statute this action be  bring against the acceptor he must now answer upon a suppose contract of his  own and not upon a joint contract with another for every endorse undertake  several for himself and the defendant in this case have undertake to pay the  sum in demand upon a subsequent contract make by himself possible my Lord  chandois may have take advantage of the statute but the defendant can for his  undertake be subsequent to the game be neither within the intent or letter of  the law three it be not aver in the plea that the plaintiff Hussey do accept  the bill for secure the payment of the money lose at play and without such  averment it be not within the meaning of the statute modern e contra first to  the custom of merchant it need not be answer as it modern er p be set forth in  the declaration for there be special matter enough which alter the custom it  be true there be a bill set forth which be allege to be draw accord to the  custom of merchant but with this impediment that it be draw as a security for  the payment of money win at play which bill ought not to be take by law so  that though the custom be admit it be avoid by a Act of parliament as to the  second objection the plea be that Jacob do accept the bill for the sum for  which it be draw which be for money win at play it be a contract for the  payment of such money which be void by the statute as to the three objection  if this shall not be within the statute because it be a new undertake then it  will be easy elude by get one to be bind for the money lose at play which be a  new undertake foe the payment and so the statute will be of very little use  fourthly as to the exception that it be a plea which amount to the general  issue a man in many case may plead special matter to avoid the plaintiff  action though he may give it in evidence upon the general issue as in debt  upon a bind against a feme covert she may plead coverture or give it in  evidence upon non be factum the law here plead I consistent with the action  bring against the defendant which he have confess but have also show special  matter to avoid it it can be deny but that if the action have be bring against  my Lord chandois the drawer upon the refusal of Jacob to pay it my lord may  have take advantage of the statute which be a argument that the defendant  shall also take the same advantage because his new contract stand upon the  former consideration and it be but a far security for the same money lose at  play and his acceptance of the bill be a express promise to pa it now this  game must be either upon tick or for ready money but it be plain it can not be  for ready money for then the loser will not have draw this bill for the  payment of it whereupon judgement be give for the defendant see now the Ann c  a