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LAVAL v. MYERS.

In the Court of Appeals of South Carolina.

APRIL TERM 1830.

(REPORTED 1 BAILEY 486.)

[Wagers upon elections.]

A wager upon the result of the election for President of the United States, is contrary to public policy, and no action can be maintained for its recovery.

This was a summary process, tried in the city court of Charleston, at November term 1829, for the recovery of a wager on the result of the last election for president of the United States. The wager was laid after the election by the people for members of the legislature, but before the college of electors had been chosen by the legislature. The defendant demurred, and the plaintiff joined in de

murrer.

THE RECORDER delivered the following opinion in the court below. The old cases upon the subject of wagers have been subsequently declared, by different judges, to be of little or no value; their legality was not made a question at the trial, but was always assumed, and the courts have since said, that were such cases now to be brought, they would be differently decided. Lord Ellenborough, in Gilbert v. Sykes, 16 East 157, said, "it is no new principle in the law, that if a contract have a tendency to a mischievous and pernicious consequence, it is void; I am aware, that in old cases (precedents of which are to be found in Hearne's Pleader), actions have been maintained upon wagers open to an objection of this sort, but not decided upon that ground, which was not adverted to; the first of those reported is Andrews v. Herne, 1 Lev. 33,

(Wagers upon elections.)

where the bet was upon the life of one who was held to be king de jure; and yet no point was made as to the validity of the contract, on the ground of its impolicy."* Le Blanc, J., speaking of this case of Andrews v. Herne, remarked, "I have no hesitation in saying, that that bet would never have been sustained in these days." 16 East 162. Lord Ellenborough further observed, in reference to the case of Da Costa v. Jones, Cowp. 729, which was upon a wager as to the sex of the person who passed under the name of the Chevalier D'Eon, "that it was brought several times before the court, before any objection was taken on the ground of its immoral tendency." 16 East 158. And in reference to Lord March v. Pigot, 5 Burr. 2802, which arose out of a conversation between two sons, as to which of their respective fathers would live the longest, upon which a third person had stepped in and taken up the bet with one of the young gentlemen, Le Blanc, J., said, “that case was considered chiefly on the doubt, whether or not it was a bubble bet, as one of the fathers happened to be then dead." 16 East 162.

The great case, however, in which the legality of wagers, in England, is said to have been first fully argued and decided, is that of Da Costa v. Jones, in 1778, Cowp. 729. Before that time there was one, reported in 1 W. Bl. 19, by the title of Walkhouse v. Derwent, which was deserving of more attention than it received; and which, if followed, would have saved a great deal of subsequent regret and embarrassment. A wager had been laid, that the court of king's bench would quash an order of two justices, in a certain cause; and articles were drawn, by which the defendants agreed to bring a certiorari to try it, which they never did; on their default, a suit was

* In point of fact, the plaintiff, in Andrews v. Herne, laid a wager of £20, that Charles Stuart (who was then in exile) would be king of England, within twelve months; and the defence was, that there was no consideration, as he was king de jure at the time of the promise; but the plaintiff recovered. 1 Lev. 33.

(Wagers upon elections.)

instituted on the articles, on which the defendants moved that the proceedings might be stayed and the articles delivered up; the court declined to hear it, using these words: "we desire the gentlemen would make an end of it between themselves, and let us hear no more of it, it being a very improper thing." In the marginal note, Sir William Blackstone gives his understanding of the case thus: "the court will not decide wagers." No notice appears to have been taken of this case in Da Costa v. Jones. In Good v. Elliott, 3 T. R. 702, Ashhurst, J., said, "as to the general ground, namely, whether an action will lie on any wager, that question does not now appear to be open to argument; it having been settled by so many authorities, both ancient and modern, and particularly in the case of Da Costa v. Jones, where Lord Mansfield, though he expressed a strong wish, that the practice of laying wagers might be abolished, said, that indifferent wagers upon indifferent matters, without interest to either of the parties, are certainly allowed by the law of this country, in so far as they have not been restrained by any particular act of parliament; and the restraints imposed in particular cases support the general rule." The decision of the court conformed to this opinion; but Buller, J., dissented toto cœlo, and was opposed to wagers being countenanced by the courts at all.

The later opinions of the bench have approximated to his, as closely as they could, with a due respect to this decided case. The following is the strong language of the judges, in the case of Gilbert v. Sykes, 16 East 150, already referred to, which was decided in 1812; Lord Ellenborough, C. J., after showing that the old cases had been ruled, without considering the impolicy of the practice, said, "upon the whole, therefore, not without some degree of doubt, whether Mr. Justice Buller was not right, in saying that no wagers ought to be sustained, where the parties have no special interest in the subject-matter; at any rate, where the subject-matter of the wager has a ten

(Wagers upon elections.)

dency injurious to the interests of mankind, I have no doubt in saying, that it ought not to be sustained." 16 East 159. Le Blanc, J., said, "it has been often lamented that actions upon idle wagers should ever have been sustained in courts of justice; the practice seems to have prevailed, before that full consideration of the subject which has been had in modern times; but the frequent discussion of it, in these times, has so far satisfied the minds of most lawyers, that they are now agreed, that objections would have lain in many cases of wagers, that have formerly been maintained without noticing such objections; and it is now clearly settled, that the subjectmatter of a wager must, at least, be perfectly innocent in itself, and must not tend to immorality or impolicy." Ibid. 161. Bayley, J., said, "the discussion which has been had of this case, has strongly illustrated the inconvenience of countenancing idle wagers in courts of justice; it occupies the time of the court, and diverts their attention from causes of real interest and concern to the suitors; and I think it would be a good rule, to postpone the trial of every action upon idle wagers, until the court had nothing else to do." Ibid. 162.

In Henkin v. Guerss, 12 East 247, the court expressed itself with unusual warmth on the subject; the bet was, whether a person could be lawfully held to bail, on a special original, for a debt under £40; there was nothing immoral in this; but what said the court? "Courts of justice were constituted for the purpose of deciding really existing questions of right between the parties; and were not bound to answer whatever impertinent questions persons thought proper to ask them, in the form of an action upon a wager; and although there was nothing immoral in the subject of this wager, they considered it an extremely impudent attempt to compel the court to give an opinion upon an abstract question of law, not arising out of pre-existing circumstances in which the parties had an interest." The court refused to hear the case. So, a

(Wagers upon elections.)

cause coming on to be tried before Lord Loughborough, in which the plaintiff declared upon a wager, "whether there are more ways than six, of nicking seven on the dice, allowing seven to be the main, and eleven a nick to seven," his lordship ordered it to be struck out of the paper; and the court of common pleas afterwards refused leave to restore it. Brown v. Leeson, 2 H. Bl. 43. So too, in Squires v. Whisken, 3 Camp. 140, which was upon a wager on a cock-fight, not prohibited by any statute, Lord Ellenborough refused to hear the case; first, because "cock-fighting must be considered a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice;" and secondly, because such wagers "tend to the degradation of courts of justice; for it was impossible to be engaged in ludicrous inquiries of this sort, consistently with that dignity, which it is essential to the public welfare, that a court of justice should always preserve."

These cases show the strong leaning of the courts in Great Britain, at the present day, to get rid of a rule transmitted to them through the inadvertence of their predecessors, and which has trammelled and fettered them, whenever they have been called upon to apply it. Their universal regret, with the various reasons for it, has satisfied my mind, that when the courts entertained actions upon wagers, which were unconnected with the ends of justice, they mistook the common law; for it does appear to be an extraordinary proposition, that courts of justice, established to determine on the applicability of the law to the acts and contracts of mankind, should be at the disposal of all persons who may think proper to submit to them the decision of idle bets upon indifferent subjects, and thereby also be made to sanction the practice of gambling. This point has never yet been ruled in this state, that I am aware of, and I shall not be the first to recognise such a doctrine; I take the rule of law to be, that no action for a wager can be maintained, unless it be

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