CHAPTER XLII. WAGER. I. Introduction-Of Legal Wagers-Form of Action. I. Introduction-Of Legal Wagers-Form of Action. Introduction.-It 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. 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. Of Legal Wagers.-In Andrews v. Herne, 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 (1). So in the a 1 Lev. 33. (1) 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 of its being against public policy, does not appear to have been brought 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 Bonaparte. 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 Earl of March v. Pigot, where two heirs apparent betted on 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. 3. 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. In Jones v. Randall, Cowp. 37. a wager 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 the 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 in Good v. Elliott, 3 T. R. 693. where 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, 2dly, that all wagers, whether in the shape of a policy or not, between parties not having any interest, were prohibited by stat. 14 Geo. 3. c. 48. So in Hussey v. Crickett, a wager of a rump and dozen, whether the defendant was older than the plaintiff, was holden to be legal. With respect to the form of declaring on a wager, it 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; 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. 5 Burr. 2802. But see the observations of Heath, J. on this case, in 3 Camp. N. P. C. 172. viz. that it was a case not to be cited, being of very doubtful authority. See also Bland v. Collett, 4 Camp. 157. Trin. T. 30 Geo. 3. B. R. & C. B. E. T. 52 G. 3, 3 Camp. N. P. C. 163. e Jackson v. Colegrave, on error, Exch. Ch. H. 6 W. 3. Carth. 338. Bovey v. Castleman, 1 Ld. Raym. 69. 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 burthensome to him (▲). (A) In Phillips v. Ives, (1 Rawle, 36.) a wager that "Napoleon Bonaparte will, before the expiration of two years from the date, be removed or escape from the Island of St. Helena," was held, by a majority of the court to be void. Judge Huston, who delivered the judgment of the court, declared that, in his opinion, "no bet of any kind about any human being is recoverable in a court of justice." C. J. Gibson and J. Smith dissented; the former saying, "It seems to me this wager tended neither to indecent evidence, nor to disturb the peace of the public or of an individual, and that it was not in its design or consequences, contrary to good manners or sound policy." II. Of Illegal Wagers. 1. Wagers are illegal which are specially prohibited by positive sta tute. 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. 2. c. 37. 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 madef, that plaintiff should pay the defendant 207. 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 1000l. 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, 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. 3. 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 and 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 policy, between two uninterested persons upon the sex of a thirds, is within the meaning of the preceding statute, and, consequently, illegal. 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 second clause, it was apparent, that the legislature had written instruments only in contemplation. But the construction which was put by Buller, J. on this statute was, that it had nothing to do with what, in true sense and meaning of the word, is a policy, that is, a mercantile policy made on interest, but that it prohibited all wagers made on any event in which the parties had not any interest. By stat. 16 Car. 2. c. 7. s. 2. "The winner of any money, or other valuable thing, by deceit, in playing at cards, dice, tables, tennis, bowls, skittles, shovel-board, or in cock-fightings, horse-races, dog-matches, footraces, or other games; or by bearing a part in the stakes, or by betting on the sides of such as play, ride, or run, shall forfeit treble the value." By the third section, all securities and promises given or made for the payment of sums exceeding 1007., which have been lost at one time, by playing at any one of the said games, or by betting on the players, are f Kent v. Bird, Cowp. 588. Roebuck and another v. Hamerton, Cowp. 737. declared void, and the winner shall forfeit treble the value of the money or other thing won, above 1007. The construction which has been put on this section, may be gathered from the following case: In debt for 100%. the plaintiff declared upon articlesh of agreement, purporting that the plaintiff and defendant should run a horse for 100%., and if the defendant lost, that he should pay the 100/., &c. The defendant pleaded the third section of stat. 16 Car. 2. Holt, for the plaintiff, insisted, that the statute intended to avoid securities given for money lost at play, but not where the contract was precedent; but the court were of a different opinion: that such construction would wholly elude the statute, and let men loose to play for any great sum, provided they secured it beforehand, and added, that this statute being to suppress the practice of excessive gamingi should be construed in the most extensive manner that could be to answer that end. A. lost at play to the plaintiff, and gave him a bill for the amount of the sum lost, on the defendant, who accepted the bill, and afterwards refused payment; to an action brought on the bill, the defendant pleaded, that after the 29th day of September, 1664', and before making the said bill, A. and the plaintiff were playing toge ther at hazard, and that A. then, at one time and meeting, lost to the plaintiff above 1007. and that, for securing the payment thereof, A. drew the bill in question on the defendant, who accepted the same, and that by force of the statute", that acceptance was void in law. On demurrer to this plea, it was insisted, in support of the demurrer, that this case was not within the statute; because the nature of the duty was altered, and a new contract created by the acceptance, which was the ground of the action. But the court overruled the objection; for although this was a kind of new contract, yet all was founded on the illegal and tortious winning, and it only secured the payment of that money, and, therefore, it was within the statute, the plaintiff being privy to the first wrong. Another objection was made", that if this case should be taken to be within the statute, it would very much endanger the credit of English bills of exchange, if they might be defeated by such collateral matter; for it would be injurious to the public trade of England, both foreign and domestic. To this it was answered by the court, that as to inconvenience concerning trade, there could not be any in this particular case, because the bill had gone no farther than to the first hands, viz. the hands of the plaintiff, who won the money, and so no damage could accrue to any person but to him, who was certainly a person within the statute. By 9 Ann, c. 14. s. 1. "All notes, bills, bonds, judgments, mortgages, or other securities, given by any person where the whole or any part of the consideration of such securities shall be for money, or other valuable thing, won by gaming, or playing at cards, dice, tables, tennis, bowls, or other game, or by betting on the sides of such as game at any of the aforesaid games, or for repaying any money knowingly lent for such gaming or betting, or lent at the time and place of such play, to any person that shall play or bet, shall be void." h Hedgeborrow v. Rosenden, 1 Ventr. 253. i 2 Lev. 94. Hussey v. Jacob, Salk. 344. Carth. 356. and see the pleadings, 5 Mod. 176. The day from which the 16 Car. 2. c. 7. s. m 16 Car. 2. c. 7. s. 3. It appears from the cases of Goodburn v. Marley, Str. 1159. Blaxton v. Pye, 2 Wils. 309. and Clayton v. Jennings, 2 Bl. R. 706. that wagers on horse-races are within the statutes 16 Car. 2. c. 7. and 9 Ann. c. 14; and, consequently, actions founded on such wagers cannot be supported. In the case of Blaxton v. Pye, the court said, that though horse-racing was not mentioned in the statute 9 Ann., yet it was within the words "other game" (2). So in Lynall v. Longbothom, 2 Wils. 36. the court of C. B. were of opinion, that a foot-race was within the 9 Ann., for foot-race was mentioned in the 16 Car. to which the 9 Ann. must relate. And this opinion was recognised and adopted by the court in Brown v. Berkeley, Cowp. 281. It is clear, that if these statutes had not been affected by any subsequent provisions of the legislature, every species of wagers at horse-races would have been illegal; but now, by stat. 13 Geo. 2. c. 19. matches (3) for 501. (4) and upwards, are legalized, provided they are run at certain places, and the horses carry certain weights; and by the stat. 18 Geo. 2. c. 34. s. 11. the restrictions as to running at particular places, and within certain weights, are taken away(5). But horseraces for a less sum than 50%. are expressly prohibited by the second section of 13 G. 2; and, consequently, wagers on such horse-races are illegal. These statutes, viz. 13 & 18 Geo. 2., are confined to bona fide horse-racing only; for in Ximenes v. Jaques, 6 T. R. 499., where the plaintiff obtained a verdict on a wager for 100 guineas, that he could perform a certain journey, in a post-chaise and pair, within a given time, the court arrested the judgment(6). So where A. betted with B. "500 guineas and a dinner," that A.'s horse should go from London to Sittingbourne sooner than B.'s two horses should go the same distance, B.'s horses to be placed at any distance from each other that B. should think proper; the wager having been won by B., and an action brought to recover the amount of the wager, and verdict for plaintiff, the court arrest (2) In Jeffreys v. Walter, 1 Wils. 220. the court inclined to think, that cricket was a game within the meaning of the stat. 9 Ann. (3) In Connor v. Quick, cited by Aston, J. in 2 Bl. R. 708. the court took a distinction between running a horse for 50l. which was lawful, and betting on the side of a horse, which was not so; but if neither of the sums betted by the parties amount to 10%. such bet is legal, not being contrary to 9 Ann. c. 14. M'Allester v. Haden, 2 Camp. N. P. C. 438. (4) It was agreed between plaintiff and defendant, that each should start his mare, and that if either should refuse, he should forfeit 251. to the other, but the plaintiff was to pay the defendant 51. beforehand, as a consideration to induce him to make the match. The defendant afterwards refusing to run the match, the plaintiff brought an action against him for the 251. Perrot, Baron, before whom the cause was tried, considered this as a match for 501. and on a motion in arrest of judgment, the court of K. B. were of the same opinion. Bidmead v. Gale, 4 Burr. 2432. 1 Bl. R. 671. S. C. (5) "There seems to be much ground for arguing, from the nature of 16 Car. 2. and 9 Ann., that these statutes ought to be construed strictly, in order to enforce the principle on which they are founded, viz. to prohibit all horse-racing, and that the 13 & 18 Geo. 2. are from their nature to be so construed as to encourage the breed of horses, and to permit that species of horse-raciug, only called running on the turf. It is to be observed, that stat. 13 Geo, 2. speaks of entering, placing, starting, &c. and that the expression, "any place or places whatsoever," used in 18 G. 2. can hardly mean "all England." Per Lord Eldon, C. J. in Whaley v. Pajot, 2 Bos. & Pul. 54. (6) The reason of this decision is not stated in the report of the case; but in Whaley v. Pajot, 2 Bos. & Pul. 54. Lord Eldon, C. J. said "upon inquiry of the judges of the court of King's Bench, we find, that the judgment of the court in Ximenes v. Jaques, proceeded on an opinion, that the stat. 13 & 18 Geo. 2. related to bona fide horse-racing only." 4 B VOL. II. |