By the terms of the Gen. Sts. c. 85, § 4, it is provided that “ all notes, bills, bonds, mortgages or other securities or conveyances in which the whole or part of the consideration is money or goods won by gaming, or by betting on the sides or hands of persons gaming, or for reimbursing or repaying money knowingly lent or advanced for gaming or betting, or lent and advanced at the time and place of such gaming or betting to a person so gaming or betting, shall be void and of no effect as between the parties to the same, and as to all persons, except such as hold or claim under them in good faith and without notice of the illegality of the consideration.” Upon the facts stated in the bill of exceptions, it is manifest that Barker, if he had been the plaintiff, would come within the condemnation of the statute and could maintain no. action upon the check declared upon in the first and second counts of the declaration. The selling of pools is admitted to be an illegal and gaming transaction, and the defendant Downing was indebted to him only for pools illegally sold. It appears from the bill of exceptions that the check was delivered to Barker, upon the plaintiff’s promise to make it good; but the pools were not delivered, and the transaction was not closed, until Barker had presented the check to the plaintiff, and requested and obtained his indorsement of it. The check, therefore, must be considered as negotiated to Barker by the plaintiff, and Barker received and held it as security for a gaming debt due from Downing to himself.

The question then arises whether the plaintiff stands in any better position. He sues in the first and second counts of his declaration in the capacity of indorsee and holder of the check. As the check considerably exceeded the amount due to Barker, we must infer that the latter accepted it as security for that amount, and that, upon receiving that security, he advanced money of his own, or did whatever was necessary to put the “ pool ” in the same condition as if Downing had paid for his pools in cash. As the jury were instructed, they were required to find for the plaintiff, if the check was passed to Barker in payment of a debt due to him from Downing which had been contracted before the plaintiff took any part in the transaction, “ although it should appear that the debt had in fact been contracted in the purchase of pools, and the plaintiff knew oi had *274reason to believe that it had been so contracted.” But this instruction, in our judgment, cannot be sustained. If the purpose of the transfer and indorsement of the check was to pay to Barker money which he had won by gaming or betting, or to secure to him the reimbursement of money lent or advanced to a person gaming or betting, or lent and advanced at the time and place of such gaming or betting to a person so gaming or betting, the check comes within the prohibition of the statute. It is immaterial whether the debt which it was intended to secure had been previously contracted or not. The question as to the validity of the security which the plaintiff seeks to enforce depends upon the nature of the debt which it was intended to secure, and the plaintiff’s knowledge of its illegal nature. If he had such knowledge, he was not a bond fide holder of the check within the meaning of the statute.

In the third count of the declaration the plaintiff claims not strictly as indorsee of the check, but on the ground that he has paid the sum of two hundred and sixty dollars to Downing’s use. That sum appears from the bill of exceptions to be the amount of Downing’s losses upon his pools, payable to Barker. Nothing can be clearer than that Barker would have had no standing in court to enforce the payment of these losses, and, as we have already seen, he had no right of action as holder of the check against any person whatever. The plaintiff can acquire no right of action against Downing by paying money which he, Downing, was under no legal obligation whatever to pay. The statute above cited (Gen. Sts. c. 85) was intended to make all gaming illegal. Babcock v. Thompson, 3 Pick. 446. White v. Buss, 3 Cush. 448. It not only provides that all securities for gambling debts shall be void, except as to bond fide holders without notice, but by the first section all money, &c., lost at gaming may be recovered back by the loser; or, if he does not prosecute within three months, by any other person who may see fit to prosecute. The money, therefore, paid by the plaintiff to Barker, was not only money which he, Barker, could not have recovered of Downing, but which he could not even hold, after it had been paid. He acquires no such title to it as to make it, in contemplation of law, his money. Mason v. Waite, 17 Mass. 560. The winner in a gaming transaction can be compelled to pay back his winnings, with the addition of a heavy penalty.

*275The defect in the instructions given by the learned judge appears to be that he treated the case as if the transaction had been merely a loan of money by the plaintiff to the defendant. If that had been the real transaction, the fact that the defendant intended to use the money in paying a debt previously contracted, which he was not bound to pay, might be immaterial. But upon the facts reported in the bill of exceptions, we cannot fail to see that whatever indorsement the plaintiff furnished and whatever money he paid were furnished and paid to Barker, and not to the defendant, and that for that reason the plaintiff’s knowledge as to the nature of the debt so secured or paid was the turning point in the case. Exceptions sustained.