would pay on a certain day, before which the plaintiff, at the defendant's request, because he was going to a distance, advanced to the defendant his share of the winnings. B. died insolvent before the day, and the bet never was paid. It was holden (i), inasmuch as the plaintiff could not establish his case without the aid of the illegal wager in his proof, in which all were concerned, he could not recover. In Barjeau v. Walmsley (k), Alcinbrook v. Hall (1), and M'Allester v. Haden (m); it was holden, that the security only, and not the contract, was rendered void by the statute 9 Ann. c. 14. And in Robinson v. Bland (n), Lord Mansfield stated, that it had been twice judicially determined that the object of the legislature was to avoid the security and not the contract, in order to give courts an opportunity to examine into the merits of the consideration; and there are certainly other dicta to the same effect. On the other hand, in Young v. Moore (o), the Court of Common Pleas held, that the statute by necessary implication made void the contract as well as the security; and the Court of Exchequer, in M'Kinnell v. Robinson (p), inclined to that, as the more reasonable view of the law (g). But the legislature, in passing the 5 & 6 Will. IV. c. 41, has in fact pronounced its decision upon this point. That act, while it repeals so much of the statute of Anne as makes the securities void, expressly enacts that they shall be deemed to have been given on an illegal consideration; and it is impossible to impute to the legislature an intention so absurd, as that the consideration should be good and capable of being enforced until some security is given for the amount, and then that by the giving of the security the consideration should become bad. The statute of Anne, therefore, in connexion with the 5 & 6 Will. IV. c. 41, must be taken to avoid all contracts for the payment of money won at play (r). An action cannot be maintained upon such wagers as in the event may have an influence on the public policy of the kingdom. On this principle it was holden (s), that a wager between two electors, on the event of the election of members to serve in parlia ment, was void; because it raised an improper bias in the minds of the parties to vote for one or other of the candidates, which bias would be subversive of the freedom of elections, and detrimental to the constitution. So it is a reasonable objection to a wager, that it has a tendency to influence and pervert the course of criminal justice. Hence, a wager as to the conviction or acquittal of a prisoner on trial, on a criminal charge, is illegal (t), as being against public policy. A contract in restraint of marriage generally, is illegal, as being against the sound policy of the law. Hence, a wager that the plaintiff would not marry within six years, was holden to be void (u); for although the restraint was partial, yet the immediate tendency of such contract, as far as it went, was to discourage marriage, and no circumstance appeared to show that the restraint, in the particular instance, was prudent and proper. Any wager which leads to a public inquiry into the mode of playing an illegal game (x), e. g., hazard, by which the by-standers may acquire a knowledge of it, is contrary to good morals and the policy of the law, and, therefore, not a ground on which an action can be maintained. In like manner, the court will not entertain an action on a wager upon an abstract question of law or judicial practice, not arising out of pre-existing circumstances, in which the parties have an interest (y). And in another case (z), Gibbs, C. J., following the example of Lord Loughborough and Lord Ellenborough, in the foregoing cases of Brown v. Leeson, and Henkin v. Guerss, refused to try an action upon a wager, whether an unmarried woman had had a child. An action cannot be maintained upon a wager on a cock-fight (a), because it is a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice; and further, because it would tend to the degradation of the court to entertain such inquiries. So if the subject of the wager lead to improper inquiries, which respect the interest and general importance of the country, they are illegal, as being contrary to sound policy; as wagers on the amount of the hop duties (b), or the receipt tax, or any other branch of the public revenue. And this rule holds, although the actual discussion may be excluded by the special circumstances of the case: as where the wager being on the amount of the hop duties, the defendant had admitted that he had lost his wager (c); so where defendant had given a promissory note for the amount of the wager (d). So also where the discussion of the subject of the wager will be attended with injury to a third person, and lead to indecent evidence. On this principle (e), a wager between two indifferent persons on the sex of the Chevalier D'Eon, who had appeared to the world as a man, and acted in that character in a variety of capacities, was holden illegal. Pleading. With respect to the form of declaring on a wager, it (t) Evans v. Jones, 5 M. & W. 77. See ante, n. (2), p. 1411. (u) Hartley v. Rice, 10 East, 22, ante, p. 59. (x) Brown v. Leeson, 2 H. Bl. 43. Ditchburn v. Goldsmith, 4 Campb. 152. (a) Squires v. Whisken, 3 Campb. 140; Lord Ellenborough, C. J. (b) Atherfold v. Beard, 2 T. R. 610. may be observed, that before the time of Holt, C. J., it was a question whether a general indebitatus assumpsit would not lie for a wager; it was however finally agreed that it would not (f); but although an action does not lie in that particular form, yet a special assumpsit on the wager itself, laid by way of mutual promises, may be maintained. The objection that a transaction is illegal under stat. 16 Car. II. c. 7, cannot be taken unless pleaded specially, although the objection appears on the plaintiff's pleadings or case (g). (f) Jackson v. Colegrave, in error, Exch. Chr. 6 Will. III. Carth. 338; Bovey v. Castleman, 1 Ld. Raym. 69. (g) Daintree v. Hutchinson, 10 M. & W. 85; Martin v. Smith, 4 Bingh. N. C. 436; 6 Scott, 268, ante, p. 124. AN INDEX ΤΟ THE PRINCIPAL MATTERS. ABANDONMENT: of contract, 874, 5, 6. assured may elect to abandon, 972, 6, 7. what loss is necessary to justify, 973. notice of, must be given in reasonable time, 974. when there may be a total loss without an abandonment, ib. one jointly interested with others may give notice for all, 976. ABATEMENT: for non-joinder, stat. 3 & 4 Will. IV. c. 42, s. 8, 121. of coverture, not within stat., ib. of nuisance, by commoner, 443. plea in, in assumpsit, 121. covenant, 482. requisites of such plea, ib. non-joinder of partner, 1148. ABBEYS: dissolution of, 1302, 3. ABSENTING: otherwise absenting himself, when an act of bankruptcy, 198, 200. of title, property in, 1363. vendor must be prepared to verify, 187. ACCEPTANCE OF BILLS OF EXCHANGE-continued. non-acceptance, notice, protest, 361. ACCEPTANCE OF CHARTER: cannot be partial, 1170. ACCEPTANCE OF GOODS: what sufficient, within stat. of frauds, 864, 5, 7. ACCEPTOR OF BILL OF EXCHANGE: acceptor paying bona fide indorsee of a forged bill, indorsee may retain the liability of, 351. is considered as principal debtor, ib. effect of entering into composition with, 383. evidence in action against, 393. accommodation acceptor, where not discharged, 351. ACCESS: what is considered as such, 758. non-access must be proved by other testimony than wife's, 759. ACCIDENT: where no excuse for trespass, 27. coach-owner not liable for inevitable, 420. from negligence, 1120. ACCOMMODATION BILL: where no effects, notice to drawer of dishonour unnecessary, 353. maker of, how discharged, 386. ACCORD AND SATISFACTION. plea of, in assumpsit, 124. covenant, 534. whether accord before day of payment, can be pleaded to debt on bond, payment of part, and promise to pay residue, cannot be pleaded in satis- payment of less sum before the day, may be pleaded, 565. plea of, in trespass, 1336. ACCOUNT: action of, 1. must be either privity in deed or in law, 1. how to declare on the stat. 4 Ann. c. 16, 2. lies against bailiff, ib. and against tenant in common, ib. against executors of guardian, bailiff or receiver, 3. by executors, administrators, and executors of executors, ib. on a running account between merchant and broker, ib. lies not against infant, ib. nor by executor against co-executor, ib. plea in, 4. evidence on ne unques receiver, ib. judgment quod computet, form of, 4, 5. proceedings thereon, 5. auditors, their power by stat. 4 Ann. c. 16, ib. proceeding in default of bail, ib. rules for pleading before auditors, 5, 6. 1 |