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Ry. & Moo. 213; 1 C. & P. 613, 11 Eng. Com. Law Rep. 497.
The wager might be idle or frivolous; still it rested with the judge at the trial to say whether he would or would not proceed with the action on it. Thornton v. Thackray, 2 Younge & Jerv. 156. If it was tried, and the legal result was right, judgment was given on the verdict. Robinson v. Mearns, 6 Dow. & Ry. 26; Walpole v. Saunders, 7 Id. 130; 16 Eng. Com. Law Rep. 253, 276. Sir James Mansfield was induced to think he ought not to have tried the question whether defendant was older than the plaintiff, raised as the question was in an action on a wager of a rump and dozen. But he did try it, and at the trial it was proved that a rump and dozen meant a good dinner and plenty of wine for the persous present. The judges discovered no illegality in the dinner and wine, and the older man, though he did not attend the dinner, was made to pay for it. Hussey v. Crickett, 3 Camp. 168.
Sentiment, however, increased in strength against actions. upon wagers. Lord Denman thought it a pity that the time of the court should be occupied in discussing questions of the sort. Fisher v. Waltham, 4 Adol. & El. N. S. 859, 45 Eng. Com. Law Rep. 887. This expression of his opinion (in 1843) was soon followed by the statute of 8 & 9 Vict., c. 109; 2 Man. Grang. & Scott 858.
Before that statute, some wagers had been prohibited by the statutes of 9 Ann, c. 14, 13 Geo. 2, c. 19, and 18 Geo. 2, c. 34. Goodburn v. Marley, 2 Str. 1159; Lynall v. Longbottom, 2 Wils. 36; Blaxton v. Pye, Id. 309; Clayton v. Jennings, 2 W. Bl. 706; Brown v. Berkeley, Cowp. 281; Johnson v. Bunn, 4 T. R. 1; Ximenes v. Jaques, 6 T. R. 499; Whaley v. Pajot, 2 Bos. & Pul. 51. Where a horse was sold, the price to be £ 200 if he did, and 1s. if he did not, trot 18 miles within one hour; the court considered this a wager on an illegal game, in the way of a trotting race-a wager on a game in which more than £ 10 was at stake, and therefore within the mischief of the statute of 9 Ann, c. 14. Brogden v. Marriott, 3 Bing. N. C. 88, 32 Eng. Com. Law Rep. 52. But an action was maintained for less than £ 10 won at a fair play, Bolling v. Frost, 1 Esp. 235; or bet at a steeple chase or other race for upwards of £ 50. McAlister v. Haden, 2 Camp. 438; Walmsley v. Matthews, 3 Man. & Grang. 133; Evans v. Pratt, Id. 759; 42 Eng. Com. Law Rep. 77, 459. And if the race was run before the bet was made, it was no objection that the bet was for more
than £10. Pugh v. Jenkins, 1 Adol. & El. N. S. 631, 41 Eng. Com. Law Rep. 704.
In the time of William & Mary there was the case of two men playing at backgammon, one of whom having thrown two fours, and touched and a little stirred two of his men, there was a wager that he should pay 150 guineas if he was bound to play those men, and if he was not, should be paid by the other 100 guineas, and it was referred to the groom porter, whose judgment being in favour of the party who had only stirred his men, without moving them from the point, an action was brought for the 100 guineas, and the court was of opinion that the matter was not within the statute, because it was collateral and did not depend on the success of the game. Pope v. St. Leger, Holt 550; 1 Salk. 344.
Such cases will hereafter occupy less of the time of the English courts; the statute of 8 & 9 Vict., c. 109, § 18, enacting as follows:
"That all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no' suit shall be brought or maintained in any court of law or equity, for recovering any sum of money, or valuable thing, alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made : provided always, that this enactment shall not be deemed to apply to any subscription or contribution, or agreement to subscribe or contribute for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise." 2 Man. Grang. & Scott 858; 52 Eng. Com. Law Rep. 858..
The Virginia act in 1 R. C. 1819, p. 561, ch. 147, was the subject of judicial decision in Buckner &c. v. Smith &c. 1 Wash. 296; Hoomes v. Smock, Id. 389; Woodson &c. v. Barrett & Co. 2 H & M. 80; Carter's ex'or v. Cutting & wife, 5 Munf. 223; Skipwith v. Strother &c. 3 Rand. 214, and Machir v. Moore, 2 Grat. 257. The Code of 1849, p. 578, 9, ch. 142, § 2, 3, 5, provides as follows:
§ 2. Every contract, conveyance or assurance, of which the consideration, or any part thereof, is money, property or other thing won, or bet, at any game, sport, pastime or wager, or money lent or advanced at the time of any gaming, betting or wagering, to be used in being so bet or wagered, (when the person lending or advancing it knows that it is to be so used,) shall be void.
§3. If any person shall lose to another, within twenty-four hours, seven dollars or more, or property of that value, and shall pay or deliver the same, such loser may recover it back from the winner by suit, according to the amount or value, brought within three months after VOL. II.-21
such payment or delivery; it may be so recovered from the winner, notwithstanding the delivery was to his endorsee, assignee or transferree.
§ 5. If the party losing the money, or property mentioned in the third section of this chapter, shall not sue for the same, within three months from the time of the payment or delivery thereof, and recover back such money or property, any other person may sue the winner for, and recover from him, treble the value thereof. One half of what is so recovered shall be for himself, and the other half for the commonwealth.
No action will be sustained on any bet or wager in Pennsylvania. Phillips v. Ives, 1 Rawle 37; Edgell v. McLaughlin, 6 Whart. 176; nor in South Carolina. Since the case of Hasket ads. Wootton, 1 Nott & M. 180, the subject has been more fully considered. Laval v. Myers, 1 Bailey 486. And the whole body of wagers, great and small, are there swept from the courts. Rice v. Gist, 1 Strobhart 85.
The doctrine as to wagers is materially connected with the doctrine as to insurances. It was established as law among all the commercial nations of Europe, beyond the British isle, that the insured must have an interest in the thing insured. But herein the marine law differed from the common law of England which sanctioned an action on a wager without any interest in the parties but what was created by the wager itself. 5 Bos. & Pul. 296. There had, it is true, been different determinations on the subject. Goddart v. Garrett, 2 Vern. 630. Their history is given by Lord Hardwicke in the Sadlers Co. v. Badcock, 2 Atk. 556. It seems that policies on maritime risks were used improperly-made mere wagers on the happening of those perils. This practice was in England by the statute of 19 Geo. 2, c. 37, put an end to except in a few cases. The principles of that statute have, in the United States, been approved in several of the states. Pritchett v. Ins. Co. 3 Yeates 458. In Massachusetts if the assured had no insurable interest, the policy is considered a wager policy and no recovery is allowed thereon. Amory v. Gilman, 2 Mass. 1. Wagering policies were recognized in New York. Clendening &c. v. Church, 3 Caines 141; Juhel &c. v. Church, 2 Johns. Cas. 333; Buchanan v. Ocean Ins. Co. 6 Cow. 331. But a change has been made by statute. 1 R. S. 662, § 8, 9, 10. This statute Chancellor Kent considers has effectually destroyed them. 3 Kent's Com. 278. The decisions in Pennsylvania are more against such policies than those of New York. Adams v. Pennsylvania Ins. Co. 1 Rawle 97; Phillips v. Ives, Id. 42.
It may be important in Virginia and other states where the statute of 19 Geo. 2, c. 37, has not been enacted, to consider whether at common law a person might have insured without having any insurable interest. The preamble to that statuteand perhaps the enacting part also-furnishes evidence that he could. Crawford v. Hunter, 8 T. R. 23; Abbott v. Lebor, 3 Johns. Cas. 39. The subject was much discussed in Lucæna v. Crawford &c. 3 Bos. & Pul. 75. The judges there were of opinion that an insurance of a ship by a mere stranger would be valid if the owner afterwards ratified it. 5 Id. 291. They said the question always is, whether the policy be a gaming contract? if it be no artifice, how, they ask, can it elude the force of the statute? Id. 297. By this case it was solemnly determined, without even a difference of opinion among the judges, that at common law wager policies, or insurances without interest, were lawful; and that it was impossible to say that any wager which was not contrary to the policy of the law, that is contrary to morality or hurtful in a political point of view, was not a legal contract. Cousins v. Nantes, 3 Taunt. 515.
This determination has given rise to an important distinction between, on the one hand, policies of assurance against marine risks and against fire, which as stated ante, p. 302, are contracts of indemnity, the insurer engaging to make good certain limited amounts-the losses sustained by the insured in their buildings, ships and effects; and on the other hand, the contract commonly called "life assurance," which is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life. It was of a policy against marine risks which is in its terms a contract for indemnity only, that Lord Mansfield was speaking in Hamilton v. Mendes, 2 Burr. 1210. And his doctrine was applied by Lord Ellenborough and his associates in the king's bench to an action on a policy of insurance on the life of Mr. Pitt, by persons who were his creditors at the time the insurance was effected, but whose debts were paid before they brought their action on the policy. Regarding the contract as one of indemnity, the court held they had no ground of action. Godsall &c. v. Boldero &c. 9 East 72. In some subsequent cases in England, the judges do not dispute-some indeed appear to approve of the case of Godsall v. Boldero; but they are cases in which it was not material to controvert it, and in which the questions to be decided were quite independent of the authority of that case. Barber v. Morris, 1 Moo. & R. 62; Phillips v. Eastwood, Lloyd & Goold 270, 10 Cond.
Eng. Ch. Rep. 506; Henson v. Blackwell, 4 Hare 434, 30 Eng. Ch. Rep. 434. In practice, it is said that Godsall v. Boldero, has, in England, been constantly disregarded. The exchequer chamber has not felt bound by its authority; considers that a policy for a life assurance in no way resembles a contract of indemnity; that in an action on such a policy it is unnecessary to prove more than an interest at the time of making the policy; that that interest is sufficient to make the policy valid in point of law. Dalba v. India & London Life Ass. Co. 28 Eng. Law & Eq. 317. In this case the court held, 1, that the contract to pay the fixed sum of £1000 on the death of the Duke of Cambridge would have been unquestionably legal at common law, whether the plaintiff had an interest therein or not; and 2, that the contract was not rendered illegal and void by the statute of 14 Geo. 3, c. 48-that the only effect of the statute is to make the insured value his interest at its true amount when he makes the contract.
11. Thing to be done must be legal. Court will not enforce contract forbidden by the common or statute law.
"In order to found a consideration for a promise, it is necessary," says Ashurst, J., "that the party by whom the promise is made, should have the power of carrying it into effect; and secondly, that the thing to be done should itself be legal." Nerot v. Wallace, 3 T. R. 23. In this case the consideration for the promise was void on both these grounds. The promise was in consideration of a stipulation by assignees of a bankrupt not only for their own acts but also that the commissioners should forbear to examine the bankrupt; a forbearance which the assignees had no legal power to enforce, and an examination which even the commissioners could not legally dispense with. Buller, J., besides concurring with the other judges on these grounds, considered the situation of the contracting parties. Treating the case as one in which the defendant's friendship for the bankrupt was worked upon, and a promise from him obtained by the assignees, who had a power over him, he regarded the parties to the contract as not upon an equality, and was of opinion that the cases of Smith v. Bromley, Dougl. 671, note, and Cockshot v. Bennett, 2 T. R. 763, went the length of determining that the action could not be maintained.
When the contract which the plaintiff seeks to enforce, be it express or implied, is, expressly or by implication, forbidden