Walker responded by filing a demurrer, in essence claining that Harding didn't have grounds for a lawsuit. The record book reveals that the court overruled the demurrer and authorized the parties to take depositions. Nothing more seems to have happened until a year and a half later, when Walker moved to dismiss the suit because Harding had not yet filed a bond for the costs of the lawsuit. At this point the parties submitted their arguments as to whether there was any type of contract to support the lawsuit.

On April 25, 1828, the court issued its decision, which has been published in Hempstead's Reports. The court sustained the demurrer on two grounds. First, the contract had no consideration. The idea of consideration is central to the concept of contract. In the nineteenth century it was possible to make a binding contract without consideration, but to do so the contract must be under seal. A simple agreement such as this must have consideration to be an enforceable contract. Otherwise, it was merely a "nudum pactum," or a bare agreement, without consideration, and unenforceable. Second, it was an immoral contract, because it involved gaming. Territorial law made ABC, faro, roulette, equality, "or any other kind of gaming table or tables, at which any game of chance shall be played for money or property" illegal. Both the people keeping the table and those betting were subject to fines. Geyer's Digest.

The court distinguished between "wagers," some of which were not void, and "gaming contracts." The court did not define either term. The 1856 edition of Bouvier's Law Dictionary defines a wager as a contract by which parties agree that money or something else of value shall be delivered by one to the other on the happening or not happening of a certain event. Bouvier's indicates that gaming contracts are generally valid under common law unless the game is prohibited by statute. In this opinion, the court stated that even though all wagers were not void, all gaming contracts were. Despite the fact that the game of seven-up was not illegal in Arkansas Territory, a bet made during a game could not be enforced at law.

Nonetheless, some of the most avid gamblers in the territory were judges and lawyers. Albert Pike's biography recounts a building used as a court house. Some of the circuit-riding bench and bar slept in one room of the building, while underneath them others played faro all night.

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