Senior v. Morris : America's First Reported Gambling Case

I. Introduction

Although there is no way to be certain, due to the haphazard state of early case reporting, ¹ it appears that America's first reported gambling case is Senior v. Morris. ² Decided in April 1741 by the General Court of Virginia (GCV), it reversed a judgment issued by the County Court of Caroline County (CCCC). ³ The CCCC had recognized an arbitration award in which the panel had “agree[d] the Gaming to be intirely [sic] false Gaming and not anything to be recovered that was supposed to be won by gaming.” ⁴

The GCV's opinion, which is very short (515 words), is reproduced in the appendix to this article. ⁵ As will be seen, it is a difficult piece of writing for modern readers to parse.

II. The Courts of Colonial Virginia

Prior to the Revolutionary War, the court system of Virginia consisted primarily of county courts and the GCV. ⁶ While the former used lay justices of the peace, ⁷ the latter was manned by the colony's governor (who served as the GCV's president) and a dozen judges known as “councillors.” ⁸ Only in rare instances did the councillors have any sort of legal training, although most were well educated. ⁹

The GCV was founded in 1619 as the “Council Court.” ¹⁰ In 1626, it acquired the name Quarter Court because it was supposed to meet four times a year. ¹¹ Beginning in 1659, the court became known as the GCV. ¹² Initially, the GCV sat in Jamestown, but in 1700 it moved (along with the rest of the colony's capital) to Williamsburg. ¹³

Appeals from the county courts went to the GCV, ¹⁴ while appeals from the GCV were heard by the Privy Council in London. ¹⁵ Because appeals from the county courts to the GCV were both easy to file and inexpensive to prosecute, litigants regularly took them. ¹⁶ In contrast, appeals to the Privy Council were time consuming and costly and, as a result, rare. ¹⁷

The heavy workload of the GCV, combined with the colony's lack of lawyers and the GCV's own dilatory practices, caused GCV appeals to take an unusually long time to be decided. ¹⁸

III. Senior v. Morris

Little is known about Senior v. Morris, for the GCV's opinion provides few facts; neither the CCCC's nor the arbitration panel's decision has survived; and there are no newspaper articles about the case.

A close reading of the GCV's opinion, however, suggests the following. Morris, whose first name is not given but was Thomas, put up a penalty bond (i.e., a surety bond) to encourage Senior, whose first name also is not given but was George, ¹⁹ to engage in some type of gambling (the exact form is not specified). Whether Morris put up the bond to get Senior to bet with Morris or with someone else also is not revealed.

Technically, gambling was illegal in Virginia. ²⁰ In practice, however, many different types of gambling existed during this period:

[G]aming was a centerpiece of colonial life. Everybody did it—men, women, rich, poor, gentry, and slave. Like their English cousins, colonists bet on all sorts of things. They wagered on card games, like whist, piquet, cribbage, loo, put, and all-fours. Foreigners reported that card lovers could start a game after supper and play until dawn. Dice was a standard pastime, and betting on combative activities—bear baiting, cock fights, dog fights, dogs killing rats, target shooting, and wrestling matches—was popular.

Arguably, horse races were the most popular venue for gaming. ²¹

Based on later events, it appears that Senior had some doubt whether the gambling that Morris wanted Senior to engage in was honestly run. Thus, Senior could collect on the bond put up by Morris if, after gambling, he filed a successful challenge with an arbitration panel consisting of Baber and Fleming, whose first names are unknown. Both the Babers and the Flemings were large and important families in Virginia at this time, ²² and so it makes sense that a member from each would be designated to hear any dispute that might arise. ²³

As the GCV's opinion explains, Baber and Fleming could not reach agreement when Senior made a demand for payment under the bond. ²⁴ To break their tie, they asked Scott, whose first name is not given, ²⁵ to serve as the umpire. ²⁶ Scott decided that Senior's demand for payment was well-founded, after which Baber, Fleming, and Scott jointly issued an award in Senior's favor. ²⁷

To enforce the award, Senior sued Morris in the CCCC. ²⁸ In response, Morris “craved Oyer & pleaded no Award.” ²⁹ As has been explained elsewhere, to “crave oyer” is to demand that the document sued upon (here the arbitration award) be produced and read aloud in court. ³⁰

The CCCC rejected Morris's argument that the award was defective. ³¹ Having done so, it should have granted Senior the face value of the bond, which was £40, the equivalent today of $8,500. ³² Instead, it issued a writ of enquiry, ³³ which sent the issue of damages to a jury. ³⁴ The jury found that Senior was entitled to £5.12.8 (i.e., five pounds, twelve shillings, and eight pence), ³⁵ the equivalent today of $1,200. ³⁶ Presumably, this was the amount Senior either had won gambling and not been paid or had lost gambling and was trying to recover.

Following the jury's decision, Morris filed a writ of error (i.e., an appeal) with the GCV. It held that the arbitration award was defective because: (1) it had been made by both the arbitrators and the umpire, rather than just the umpire; (2) it did not state how much Senior should collect; and (3) it ordered Senior to pay the lawsuit's costs but did not specify which costs he was to bear. ³⁷ The GCV also ruled (in dicta) that the CCCC should not have issued the writ of enquiry, because a party entitled to collect on a penalty bond is supposed to receive the bond's full amount. ³⁸ Accordingly, the GCV reversed the CCCC's judgment in favor of Senior. ³⁹

Per its usual practice, the GCV's opinion is unsigned. As a result, it is not known which, or how many, of the GCV's 12 councillors heard the case. ⁴⁰ The GCV's president in 1741 was Lieutenant Governor Sir William Gooch (the colony's governor, Willem van Keppel, the Earl of Albemarle, had chosen to remain at his home in England). ⁴¹ Whether Gooch took part in deciding Morris's appeal also is unknown.

IV. Conclusion

Senior v. Morris is not a case that has left an indelible impression on American jurisprudence. Indeed, I have found just two references to it.

First, in his 1941 casebook on appellate civil procedure, Professor Roscoe Pound (Harvard Law School) explained that while most American colonies in the eighteenth century authorized the writ of error by statute, “In Virginia, it was allowed on the common law, without a statute.” ⁴² In an accompanying footnote, Pound observed that “[such a writ] was used in 1741 where there had been a wrong judgment on demurrer. Senior v. Morris, 2 Va. Col. Decisions (Barradell) B129.” ⁴³

Second, in a 2019 amicus brief in a land use case, the Virginia Association of Defense Attorneys (VADA) urged the Virginia Supreme Court not to limit motions to crave oyer to deeds and letters of probate and administration. In discussing the history of such motions, the VADA wrote in its brief:

The utility of the oyer procedure has been called into question by a Circuit Court decision, Antigone v. Taustin, 98 Va. Cir. 213 (Fairfax 2018), which holds that its application is limited (absent agreement of the parties) to deeds and letters of probate and administration. Plaintiff-Appellant Thomas Byrne asks this Court to endorse Antigone's reasoning. … The VADA respectfully submits that the Antigone court misread the common law precedents. … 

The oyer device was in use in colonial Virginia by at least the middle of the 18th century. Even then, it was not limited, as the Circuit Court held in Antigone, to deeds and letters of probate and administration. … 

Thus in Senior v. Morris, 2 Va. Colonial Dec. B129, 1741 WL 2 (General Court 1741), a declaration on a bond “to stand to the Award of Fleming & Baber arbitrators,” “[t]he Deft. Craved Oyer & pleaded no Award.” Id., 1741 WL 2, at *1. ⁴⁴

Multiple reasons explain the obscurity of Senior v. Morris: it is hard to read, harder to understand, and focuses on arcane matters of pleading and procedure. For gaming lawyers, however, it likely is the fountainhead from which all other reported American gambling cases spring.