Page images


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,

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.

« PreviousContinue »