malting premises, which by reason of the default of the landlord in not repairing, according to his agreement so to do, had become unfit for malting purposes; it was holden (1), that this was no defence to an action for use and occupation for rent due subsequently to the premises becoming so unfit: if the landlord had entered into a covenant to repair, the mere breach thereof on his part would not justify the tenant in abandoning the premises: and such a consequence cannot be imported into a parol letting from year to year. A. being in possession under a lease for years, underlet the premises, from year to year, to the defendants, who knew the extent of A.'s interest. The plaintiff, afterwards, took a lease of the same premises expectant on the determination of A.'s term, and the defendants, after the determination of A.'s term, continued in possession for a quarter of a year, when they paid rent for that period to the plaintiff, at the same rate they had previously paid to A., and claimed to give up possession. This was refused, and the premises remained unoccupied for some time. The plaintiff brought an action for use and occupation; but the C. J. held (m), that the old tenancy having been determined, there was not any evidence of a new continuing tenancy, for the fact relied on admitted equally well of a different construction. So where defendant, who had occupied under a lease, which expired at Lady-day, 1829, paid a quarter's rent on Midsummer-day, 1829, deducting something for repairs; he was not afterwards seen on the premises, but the rent was paid, at irregular intervals, by L., who had occupied the premises. In an action for use and occupation against the defendant, claiming two quarters' rent due at Lady-day, 1831; the judge left it to the jury to find whether the landlord had not accepted L. as the tenant; and the jury having found for the defendant, the court refused (n) to disturb the verdict. A. lets lands to B., who underlets to C. and others; during these tenancies, A. gives notice to C. and the other under-tenants to quit, and C. does quit, and the lands before occupied by him remain unoccupied for a year, and are then again let by B.; A. cannot recover against B. for the use and occupation of this land for the year. And semble, under these circumstances, an eviction might be pleaded to the whole demand (o). The husband is not liable in an action for use and occupation (p), upon an occupation by the wife dum sola, not at the request of the husband. In an action for use and occupation (q), if it appear that the (1) Surplice v. Farnsworth, C. P., 3 June, 1844. See further, as to the right of a tenant to withdraw from the tenancy, the judgment of Tindal, C. J., in Izon v. Gorton, 5 Bingh. N. C. 501; 7 Scott, 537; and Arden v. Pullen, 10 M. & W. 321. (m) Freeman v. Jury and another, 1 M. & Malk. 19. (n) Woodcock v. Nuth, 8 Bingh. 170; 1 M. & Sc. 317. 94. (0) Burn v. Phelps, 1 Stark. N. P. C. (p) Richardson v. Hall, 1 Brod. & Bingh. 50. (9) Girarday v. Richardson, 1 Esp. N. P. C. 13. premises were let to the defendant for the purposes of prostitution, the action cannot be sustained, the contract being contra bonos mores (5); but where the premises are not let to the defendant for the purposes of prostitution, the defendant cannot evade the payment of a fair rent (r), although she prove that she has used them for those purposes. In an action for use and occupation of a lodging under a weekly tenancy, where it did not appear that the lodging was originally let for the purposes of prostitution; it was holden (s), that the plaintiff could not recover the weekly rent which had accrued after he was fully informed that the defendant occupied the lodging for the purposes of prostitution. See further on this subject, ante, p. 67. Assumpsit for use and occupation (t); on examination of a witness who proved the occupation by defendant, it appeared, that there had been an agreement in writing, but not stamped. It was contended, by plaintiff's counsel, that the agreement, not having been stamped, was not binding on the parties, and that therefore the plaintiff might waive this, and go into evidence generally for use and occupation. It was insisted for defendant, that it appeared that defendant held under a written contract, and therefore the plaintiff was bound to give it in evidence. Eldon, C. J., was of this opinion; observing, that this being a specific contract between plaintiff and defendant, the plaintiff is bound to show what that contract was: it may contain clauses which may prevent plaintiff from recovering; others for the benefit of defendant, which he had a right to have produced but the contract not being stamped, it could not be given in evidence (6), therefore the plaintiff must be nonsuited. An action for use and occupation (u) is maintainable without attornment upon the stat. 4 & 5 Ann. 3. 16, ss. 9 and 10, by the trustees of one whose title the tenant (defendant) had notice of before he paid over his rent to his original landlord; although the tenant had no notice of the legal title being in the plaintiffs on the record. (r) Wiggins v. George, per Abbott, C. J., Middx. Sittings after E. T. 5 Geo. IV. (s) Jennings v. Throgmorton, Ry. & M. 251. (t) Brewer v. Palmer, 3 Esp. N. P. C. 213. (u) Lumley v. Hodgson, 16 East, 99. (5) So the first publisher of a libellous and immoral work, e. g., the Memoirs of Harriette Wilson, cannot maintain an action against any person for publishing a pirated edition. Stockdale v. Onwhyn, 5 B. & C. 173. In Poplett v. Stockdale, 2 C. & P. 198; it was holden, that the printer could not recover against the publisher. (6) R. v. The Inhabitants of St Paul's, Bedford, 6. T. R. 452, S. P.; and see Buxton v. Cornish, 12 M. & W. 426, recognizing Vincent v. Cole, 3 C. & P. 481; M. & Malk. 257, by which Lord Tenterden had overruled the dictum of Bayley, J., in R. v. Pendleton, 15 East, 449. CHAPTER XLII. WAGER. Introduction, p. 1410; Statutes, 16 Car. II. c. 7, p. 1413; 9 Anne, c. 14, p. 1413; 18 Geo. II. c. 34, p. 1416, 7; 3 ģ 4 Vict. c. 5, p. 1417; Pleading, p. 1419. Introduction. INTRODUCTION.-Ir has frequently been lamented, that idle and impertinent wagers between persons not interested in the subject or event were ever considered as valid contracts. Grave and learned judges have thought that it would have been more beneficial for the public, if it had been originally determined, that an action would not lie for the enforcing the payment of any wager (1). Actions, however, on wagers relating to a variety of subjects, having been entertained under certain restrictions, and the legislature not having as yet interposed to prohibit them entirely, it may be proper to state in what cases an action will lie for enforcing the payment of a wager, and in what such action cannot be maintained. In Andrews v. Herne (a), where a wager was laid, that Charles Stuart would be King of England within twelve months next following, he then being in exile; it was holden good (2). So in the Earl of March v. Pigot (b), where two heirs apparent betted on (a) 1 Lev. 33. (b) 5 Burr. 2802, recognized in Mead v. Davison, 3 A. & E. 307. But see the observation of Heath, J., on this case, in 3 Campb. 172, viz. that it was a case not to be cited, being of very doubtful authority. See also Bland v. Collett, 4 Campb. 157. (1) "I think it would have been better if wagers had originally been left to the decision of the Jockey Club." Maule, B., 5 M. & W. 82. (2) But as it was justly observed, by Lord Ellenborough, C. J., in Gilbert v. Sykes, 16 East. 150, the illegality of this wager, on the ground to its being against public policy, does not appear to have been brought the lives of their respective fathers, no objection was made to the subject of the wager; and it was further holden, that the circumstance of one of the fathers being dead at the time when the wager was made, but of which circumstance the parties were ignorant, did not affect the validity of the wager. In Murray v. Kelly, B. R., M. 25 Geo. III., on a rule to show cause why the defendant should not be discharged on filing common bail, on the ground that the action was on a wager, whether A. kept a military academy at such a place, or not; Lord Mansfield said, that as it was merely a wager on a private event, he saw no reason why it should not be considered as a legal debt; and the rule was discharged. A wager (c) on the event of an appeal to the House of Lords from the Court of Chancery, was holden good; the wager having been made between parties who could not in any degree bias the judgment of the House, and there not being any fraud or colour in the case. So where (d) the subject of the wager was, whether one S. T. had or had not, before a certain day, bought a waggon, lately belonging to D. C.; it was holden good, per three justices: but Buller, J., was of a different opinion-1st, on the ground that two persons shall not be permitted, by means of a voluntary wager, to try any question upon the right or interest of a third person; and 2ndly, that all wagers, whether in the shape of a policy or not, between parties not having any interest, were prohibited by stat. 14 Geo. III. c. 48. So a wager (e) of a rump and dozen, whether the defendant was older than the plaintiff, was holden to be legal. A wager on the future price of foreign funds is not void or illegal, either by the 7 Geo. II. c. 8, or at common law (ƒ). (c) Jones v. Randall, Cowp. 37. (f) Morgan v. Pebrer, 3 Bingh. N. C. 457; 4 Sc. 230, recognizing Good v. Elliott. under the consideration of the court. In Gilbert v. Sykes, the defendant, in the year 1802, in consideration of one hundred guineas, agreed to pay the plaintiff a guinea a day during the life of Buonaparte. The defendant paid the guinea a day for some years; but then desisted. The action was brought to recover the arrears. The jury having found a verdict for the defendant; on motion for a new trial, it was contended, in support of the verdict, that the wager was illegal, inasmuch as it had a tendency to create an interest in the plaintiff in the life of a foreign enemy, and which, in the case of invasion, might induce him to act contrary to his allegiance. The court, being of opinion that the justice of the case had been satisfied, refused to disturb the verdict; and Lord Ellenborough, C. J., expressed a strong opinion against the legality of the wager, as well on the ground before-mentioned, as also on the ground that the party suffering under such a contract, might be induced to compass and encourage the horrid practice of assassination, in order to get rid of a life so burdensome to him. This decision was recognized in Evans v. Jones, 5 M. & W. 77, post, p. 1419. 3 A VOL. II. Wagers are illegal which are specially prohibited by positive statute. A policy of insurance is, in the nature of it a contract of indemnity, and of great benefit to trade. But the use of it was perverted by its being turned into a wager. To remedy this evil, the stat. 19 Geo. II. c. 37 (g) was made; which, after enumerating in the preamble the various frauds and pernicious practices introduced by the perversion of this species of contract, and, among others, that of gaming or wagering, under pretence of insuring vessels, &c., proceeds under general words to prohibit all contracts of assurance by way of gaming or wagering. An agreement, in writing, was made (h), that plaintiff should pay the defendant 201, at the next port a ship should reach; in consideration whereof, the defendant undertook that the ship should save her passage to China that season, and if she did not, then he would pay the plaintiff 1,000l., at the end of one month after she arrived in the Thames. It was holden, that this agreement being made without reference to any property on board, although it appeared that the plaintiff had some little interest in the cargo, was a wagering policy within the meaning of the preceding statute. A similar provision has been made with respect to insurances on lives, or any other event, in consequence of a mischievous kind of gaming, which had been introduced by such insurances, wherein the assured had no interest. To remedy this evil it was enacted, by stat. 14 Geo. III. c. 48, s. 1, "That insurances made on the life of any person, or any other event, wherein the person for whose use such policy shall be made, shall have no interest, or by way of gaming or wagering, shall be void." The second section directs, that in all policies on lives or other events, the names of the persons interested shall be inserted. A wager in the form of a policy, between two uninterested persons upon the sex of a third (¿), is within the meaning of the preceding statute, and consequently illegal. In Mollison v. Staples, Park, Ins. 640, n., where a policy was made on the event of there being an open trade between Great Britain and the province of Maryland, on or before the 6th July, 1778, Lord Mansfield said, "that it was clear the plaintiff could not recover." The authority of the two foregoing cases was recognized in Paterson v. Powell, 9 Bingh. 320; 2 M. & Sc. 399; in which it was holden, that an engagement in consideration of forty guineas, to pay 1007., in case Brazilian shares should be done at a certain sum on a certain day, subscribed by several persons, each for themselves, was holden to be a policy of insurance, and void within the foregoing statute of 14 Geo. III. c. 48. In Good v. Elliott, 3 T. R. 693, Kenyon, C. J., Grose and Ashhurst, Js., were of opinion, that the preceding statute was confined to policies of insurance, and that from the words used in the (g) See ante, p. 1021. (h) Kent v. Bird, Cowp. 583. (i) Roebuck and another v. Hammer. ton, Cowp. 737. |