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future price of foreign funds is not void or illegal, either by the 7 Geo. 2. c. 8, or at common lawe. 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 notf; 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.'

II. Of Illegal Wagers.

1. WAGERS are illegal which are specially prohibited by positive statute. 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. 378, 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 made, that plaintiff should pay the defendant 201. 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, or any other event, 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

e Morgan v. Pebrer, 4 Sc. 230, recognizing Good v. Elliott.

f Jackson v. Colegrave, on error, Exch.

Ch. H. 6 W. 3. Carth. 338. Bovey

v. Castleman, 1 Ld. Raym. 69.

g See ante, p. 1033.

h Kent v. Bird, Cowp. 588.

other event, wherein the person for whose use such policy shall be made, shall have no interest, or by way of gaming or 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 a policy, between two uninterested persons upon the sex of a third, is within the meaning of the preceding statute, and consequently illegal. In Mollison v. Staples, Park, Ins. 640, n. where a policy was made on the event of there being an open trade between Great Britain and the province of Maryland, on or before the 6th July, 1778, Lord Mansfield said," that it was clear the plaintiff could not recover." The authority of the two foregoing cases was recognized in Paterson v. Powell, 9 Bingh. 320, 2 M. & Sc. 399, in which it was holden, that an engagement in consideration of forty guineas, to pay 1007. in case Brazilian shares should be done at a certain sum on a certain day, subscribed by several persons, each for themselves, was holden to be a policy of insurance, and void within the foregoing statute of 14 Geo. 3. c. 48. 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 the 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, shovelboard, or in cock-fighing, horse-races, dog-matches, foot-races, 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 100l. which have been lost at one time, by playing at any one of the said games, or by betting on the players, are declared void, and the winner shall forfeit treble the value of the money or other thing won, above 100l. 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,

i Roebuck and another v. Hamerton, Cowp. 737.

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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 voidk." But now, by stat. 5 & 6 W. 4. c. 41, (see ante, p. 322,) notes, bills, or mortgages, which under the foregoing acts would have been absolutely void, shall be deemed to have been made for an illegal consideration.

The construction which has been put on the 3d section of the 16th Car. 2. c. 7, may be gathered from the following case: In debt for 100l. the plaintiff declared upon articles1 of agreement, purporting that the plaintiff and defendant should run a horse for 1007., and if the defendant lost, he should pay the 1007., &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: observing, 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 gamingm 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, 1664o, and before the making the said bill, A. and the plaintiff were playing together 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 statutep, 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

k See Sigel v. Jebb, 3 Stark. N. P. C. 1. 356. and see the pleadings, 5 Mod. 1 Hedgeborrow v. Rosenden, 1 Ventr.

253.

m 2 Lev. 94.

176.

o The day from which the 16 Car. 2. c. 7. s. 3. was to take effect.

n Hussey v. Jacob, Salk. 344. Carth. p 16 Car. 2. c. 7. s. 3.

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 further than to the first hands, viz. to 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.

So in

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). Lynall v. Longbothom, 2 Wils. 36, the court of C. B. were of opinion, that a foot-race was within the 9 Ann., for footrace was mentioned in the 16 Car. to which the 9 Ann. must relate. And this opinion was recognized 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 horseraces would have been illegal; but now, by stat. 13 Geo. 2. c. 19, matches (3) for 50l. (4) and upwards, are legalized,

q Carth. 357.

(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. and in Hodson v. Terrill, 3 Tyr. 929. 1 Cr. & M. 797, it was holden, that a match at cricket for 201. was within the meaning of the 2d section of this statute, and therefore illegal.

(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 107., on a horse race for 501. or upwards such bet is legal, not being contrary to 9 Ann. c. 14, M'Allester v. Haden, 2 Campb. 438. But a bet above 1007., even on a legal horse-race, cannot be sustained. Shillito v. Theed, 7 Bingh. 405.

(4) It was agreed between plaintiff and defendant, that each should

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 with certain weights, are taken away (5). But horse-races 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 and 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 Sittingbournes 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

r Johnson v. Bann, 4 T. R. 1. s Whaley v. Pajot, 2 Bos & Pul. 51.

start his mare, and that if either should refuse, he should forfeit 251. to the other, but the plaintiff was to pay the defendant 57. 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. Perrott, Baron, before whom the cause was tried, considefed 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 and 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-racing 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 Geo. 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. and Pul. 54. Lord Eldon, C. J. said, "6 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 and 18 Geo. 2. related to bond fide horse-racing only."

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