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ligation to bring it up, still, if he had abided by the terms of it and brought up the child in the prescribed manner there would have been ample consideration for the promise to pay the annuity."
9. If consideration be legal, court may decline enquiring into its adequacy. Meaning of the rule that there must be adequate consideration for agreement in restraint of trade.
As between original parties and where the adverse rights of creditors are not in question, the law (except so far as it is otherwise provided by statute) will not enquire into the adequacy or sufficiency of the consideration; that being left to be adjusted by the parties themselves. Shaw, C. J. in Parish v. Stone, 14 Pick. 207.
If the defendant says to the plaintiff, "If you will go to York I will give you £ 100," or "if you will tear up that paper I will give you £ 100," each of these, says Maule, J., constitutes a good consideration. Cooper v. Parker, 14 Com. Bench (5 J. Scott) 121, 78 Eng. Com. Law Rep. 121. If a defendant plead infancy, whether he was or was not an infant at the time the cause of action accrued, his agreeing to withdraw that defence is ample consideration for the plaintiff's agreeing to forego a portion of his demand. S. C. The court wont go into the question whether the one party or the other would or should have succeeded in the original action. The compromise of a doubtful claim is a good consideration without regard to the question of who might have the right side of the controversy. O'Keson v. Barclay, 2 Penrose & Watts 531.
The doctrine as to contracts in restraint of trade has been adverted to, ante, p. 34, 5. In many of the cases, the judges in delivering their opinion, that the agreement in the particular instance before them was a valid agreement, and the restriction reasonable, have used the expression, that such agreement appeared to have been made on an adequate consideration, and seem to have thought that an adequacy of consideration was essential to support a contract in restraint of trade. "If," says Tindal, C. J., " by that expression it is intended only that there must be a good and valuable consideration, such consideration as is essential to support any contract not under seal, we concur in that opinion. If there is no consideration, or a consideration of no value, the contract in restraint of trade, which in itself is never favoured in law, must either be a fraud upon the rights of the party restrained, or a mere vol
untary contract, a nudum pactum, and therefore void. But if by adequacy of consideration more is intended, and that the court must weigh whether the consideration is equal in value to that which the party gives up or loses by the restraint under which he has placed himself, we feel ourselves bound to differ from that doctrine. A duty would thereby be imposed upon the court in every particular case, which it has no means whatever to execute. It is impossible for the court looking at the record to say whether in any particular case the party restrained has made an improvident bargain or not. The receiving instruction in a particular trade might be of much greater value to a man in one condition of life than in another; and the same may be observed as to other considerations. It is enough as it appears to us that there actually is a consideration for the bargain; and that such consideration is a legal consideration and of some value." Hitchcock v. Coker, 6 Adol. & El. 438, 33 Eng. Com. Law Rep. 107, 8; Sainter v. Ferguson, 7 Man. Gr. & Scott 729, 30, 62 Eng. Com. Law Rep. 729, 30.
10. Under what circumstances a game or wager was or was not valid at common law. Changes made by statute. Rule in cases of insurance as to assured having an insurable interest. How far a life insurance is deemed a wager policy.
There is often a wager, where the party has no other interest in the subject matter than that which he chooses to create by his bet. Such a wager is not allowed by the law of Scotland, 2 T. R. 616; 3 Id. 697; and that was said to be according to the civil law. But Lord Kenyon mentions a distinction taken by Vinnius-that wagers respecting Cæsar are allowed unless they affect the character of Cæsar &c. 3 T. R. 705.
However the civil law may have been, many cases shew that at common law wagers are not void qua wagers; not void because of the gaming; Andrews v. Herne, 1 Lev. 33; Walcott v. Tappen, 1 Keb. 56, 65; Jones v. Randall &c. Cowp. 37; Earl of March v. Pigott, 5 Burr. 2802; Good v. Elliott, 3 T. R. 693; Campbell v. Richardson &c. 10 Johns. 406. There are precedents in Herne's Pleader of declarations upon wagers as far back as the time of Elizabeth. 16 East 155. And down to the present time the English decisions hold that at common law wagers are not illegal except such as involve a breach of law or morals or affect the public
policy of the country. Morgan v. Pebrer, 3 Bingh. N. C. 457, 32 Eng. Com. Law Rep. 207.
The practice of entertaining in courts of justice actions. upon wagers seems to have obtained without a full consideration of the subject: objections would have lain in many cases of wagers that have formerly been maintained without noticing such objections. 16 East 161. The first of these reported, is an action on a promise (in consideration of 20s. paid to defendant by plaintiff) to pay plaintiff £20 if Charles Stuart should be made king of England within 12 months; the promise being made when the king was in exile and about 6 months before his restoration. Andrews v. Herne, 1 Lev. 33. English judges, in more modern days have said that such a bet could not be sustained. 3 T. R. 697; 16 East 162.
An action will not be countenanced upon a subject in which not only the parties had no interest other than what they created to themselves by the bet, but the public have an interest to restrain it. In 1802 when Napoleon Bonaparte was first consul of the French Republic and at peace with Great Britain, a bet arose out of a conversation concerning the probability of his assassination or other violent death. An action was brought stating the consideration and promise to be that if the plaintiff would pay the defendant 100 guineas on the 31st May 1802, the defendant would pay him one guinea a day so long as Napoleon Bonaparte should live; and the plaintiff claimed £2296 for the time which had elapsed since the defendant stopped paying the guinea a day. A verdict was found for the defendant; and the court of king's bench refused to set it aside; Lord Ellenborough considering it as a wager against public policy and of immoral tendency. Gilbert v. Sykes, 16 East 150. It had a tendency to encourage his assassination, which even in the instance of a public enemy, should receive no encouragement from the law. 5 M. & W. 81.
There is yet more objection to a wager as to the conviction or acquittal of a person charged with felony; for such a wager has a tendency to influence and pervert the course of criminal justice; a tendency to induce the party to it either to give false testimony, if it be his interest to procure a conviction, or if the other way, to withdraw from the court evidence which he may either possess at the time of laying the wager or which may afterwards come to his knowledge. Even if a party be not in a situation to suppress or fabricate evidence, still he may influence the result of the trial by prejudicing the public mind on the case and thus deprive the party charged of the fair trial to which he is entitled. Evans v. Jones, 5
M. & W. 77. To any contract of wager, it is a fatal objection that one of the parties had the event in his own hands. v. Waltham, 4 Adol. & El. N. S. 889, 45 Eng. Com. Law Rep. 889.
On common law principles an action will not lie on a wager by two voters, depending on the result of an election for a member of a parliament. Allen v. Hearn, 1 T. R. 56. The reasons for such a decision apply with increased force in the United States. In New York in 1807 two electors (of whom one had already voted but the other not) deposited each with a third person $ 100, which he promised to pay to one of them if Morgan Lewis should be re-elected governor of the state, or to the other if Daniel D. Tompkins should be elected to that office. The latter result took place; but the successful better was unable to recover from the stake-holder; the wager was held to be void. Bunn v. Riker, 4 Johns. 426. It matters not that the bet is after the close of the poll; that the parties make notes to each other, which are deposited with a third person, who after the event of the election is known, delivers the notes to the winner; he can maintain no action on the note of the other party; the bet involving an enquiry into the validity of the election is void. Lansing v. Lansing, 8 Johns. 454. When we consider that the value of popular elections depends upon the exercise of independence, moderation, discretion and purity, it must be admitted that decisions which declare gambling upon such elections to be illegal are founded in the clearest and most incontestable principles of public policy. Vischer v. Yates, 11 Johns. 28; Denniston v. Cook, 12 Id. 376.
In Virginia, in addition to the common law prohibition in such a case, a fine is imposed by statute 1847, 8, p. 115, ch. 110,11. The Code, p. 744, ch. 198, § 10, provides as follows:
§ 10. If a free person bet or wager money or other thing, over the value of five dollars, on any election, or appointment to any office or place, to be made under authority of the constitution and laws of this state, or of the United States, he shall be fined not exceeding the value of such money or other thing.
A wholesome public sentiment would not allow such a statute to remain a dead letter.
There are other instances of wagers void at common law, because against principles of public policy. Jones v. Randall, Cowp. 37; Atherford v. Beard, 2 T. R. 610; Shirley v. Sankey &c. 2 Bos. & Pul. 130; Mount &c. v. Waites, 7 Johns. 434. Of this nature is a wager that the plaintiff should not
be married in six years; for it is calculated to operate against marriage. Hartley v. Rice, 10 East 22.
A court of justice will not try a wager that a woman has committed adultery, or that an unmarried woman has had a bastard. Cowp. 735; Ditchburn v. Goldsmith, 4 Camp. 152. Third persons shall not thus libel another or expose him to ridicule. A person appeared to all the world to be a man; he was stated on the record to be "Monsieur Le Chevalier D'Eon:" two persons were not allowed by a wager to try whether he was a female. Da Costa v. Jones, Cowp. 729.
Though the wager imputes no crime or disgrace to another, and though it do not call in question any pecuniary interest of another; yet if it concern the person of another, no action can be maintained upon it. A bet on a lady's age, or whether she has a mole on her face, or squints with her right eye, is void. No third person has a right to make it a subject of discussion in a court of justice, whether she passes herself in the world as being more in the bloom of youth than she really is, or whether what is apparent in her face is a mole or a wart, or how the organs of her eyes are formed, or which of them. it is that looks directly to the object before her. The laws of the country are calculated only to try adverse rights, and not to indulge or entertain the impertinent enquiries of others. upon matters in which they are in no wise interested. Buller, J., 3 T. R. 699, 700; Henkin v. Guerss, 12 East 247. Lord Ellenborough would not try an action on a wager on a point of law in which the parties had no interest. He threw down, with much displeasure, the record of an action on a wager "whether a person may be lawfully held to bail on a special original for a debt under £ 40;" he did not sit to state his opinion upon a question submitted to him from idle curiosity. S. C. 2 Camp. 408. Nor would he sanction cock-fighting; to try a wager on a cock-fight, he considered, would tend to the degradation of courts of justice. Squires v. Whisken, 3 Camp. 140. In another case, where the wager was that a gentleman should go by one conveyance rather than another, he considered that the misapplication of the public time, by occupying the attention of the court in deciding upon such a foolish wager, to the prejudice of more important business, was an argument against the action. Eltham v. Kingsman, 1 Barn. & Ald. 684. Abbott, C. J., like Lord Ellenborough, refused to let the time of the court be wasted in deciding upon foolish wagers to the prejudice of more important business. Whether the wager was on a dog-fight or a man-fight, he would not try which dog or which man won the battle. Egerton v. Furzman,