It appears from the cases of Goodburn v. Marley, Str. 1159. Blaxton v. Pye, 2 Wils. 309. and Clayton v. Jennings, 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 footrace 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 legis lature, every species of wagers at horse-races would have been illegal; but now, by stat. 13 Geo. 2. c. 19. matches (3) for 50%. (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 horse-races for a less sum than 50l. are (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 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. 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-racing only called running on the turf. It is to be observed, that stat. 13 Geo. 2. speaks of en expressly prohibited by the second section of 18 G. 2.; and, consequently, wagers on such horse-races are illegal. These statutes, viz. 13 & 18 Geo. 2., are confined to bona fide horseracing 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 arrested the judgment, on the ground that the subject of the wager was not that species of horse-race or match which was legalized by stat. 13 & 18 Geo. 2. Semble that a wager between the proprietors of two carriages for the conveyance of passengers for hire, that a given person should go by one of these carriages, and no other, is illegal. But it was holden at all events, (the wager having been deposited in the hands of the stake holder,) that either party having demanded his deposit before the wager was won, was entitled to have it returned to him, and on refusal to maintain an action against the stake-holder. The plaintiff laid an illegal wager with B., the defendant took a part in the bet. The plaintiff won: it was expected that B. would pay on a certain day, before which the plaintiff, at the defendant's request, because he was going to a distance, advanced to the defendant his share of the winnings. B. died insolvent before the day, and the bet never was paid. It was holden', inasmuch as the plaintiff could not establish his case without the aid of the illegal wager in his proof, in which all were concerned, he could not recover. o Johnson v. Bann, 4 T. R. 1. q Eltham v. Kingsman, 1 B. & A. 683. r Simpson v. Bliss, 7 Taunton, 246. tering, 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 bond fide horse-racing only." 2. An action cannot be maintained upon such wagers as in the event may have an influence on the public policy of the kingdom. On this principle it was holden', that a wager between two electors, on the event of the election of members to serve in parliament, was void; because it raised an improper bias in the minds of the parties to vote for one or other of the candidates, which bias would be subversive of the freedom of elections, and detrimental to the constitution. Every contract in restraint of marriage is illegal, as being against the sound policy of the law. Hence a wager, that the plaintiff would not marry within six years, was holden to be void; for although the restraint was partial, yet the immediate teudency of such contract, as far as it went, was to discourage marriage, and no circumstances appeared to shew that the restraint, in the particular instance, was prudent and proper. Any wager which leads to a public inquiry into the mode of playing an illegal game", e. g. hazard, by which the bye-standers may acquire a knowledge of it, is contrary to good morals and the policy of the law, and, therefore, not a ground on which an action can be maintained. In like manner, the court will not entertain an action on a wager upon an abstract question of law or judicial practice, not arising out of preexisting circumstances, in which the parties have an interest*. And in another casey, Gibbs, C. J. following the example of Ld. Loughborough and Ld. Ellenborough, in the foregoing cases of Brown v. Leeson, and Henkin v. Guerss, refused to try an action upon a wager, whether an unmarried woman had had a child. An action cannot be maintained upon a wager on a cock-fight, because it is a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice; and further, because it would tend to the degradation of the court to entertain such inquiries. 3. So if the subject of the wager lead to improper inquiries, which respect the interest and general importance of the country, they are illegal, as being contrary to sound policy; as wagers on the amount of the hop duties, or the receipt tax, or any other branch of the public revenue. And this rule holds, although the actual discussion may be excluded by the special circumstances of the case: as where the wager being on the amount of the hop duties, the defendant had s Allen v. Hearne, 1 T. R. 56. y Ditchburn v. Goldsmith, 4 Camp. 152. z Squires v. Whisken, 3 Camp. N. P. C. 140. Ld. Ellenborough, C. J. a Atherfold v. Beard, 2 T. R. 610. admitted that he had lost his wager; so where defendant had given a promissory note for the amount of the wager. 4. Where the discussion of the subject of the wager will be attended with injury to a third person, and lead to indecent evidence. On this principle", a wager between two indifferent persons on the sex of the Chevalier D'Eon, who had appeared to the world as a man, and acted in that character in a variety of capacities, was holden illegal (7). b Atherfold v. Beard, 2 T. R. 610. d Dacosta v. Jones, Cowp. 729. (7) The Chevalier D'Eon was for many years asserted and implicitly believed to the last to be a female, of which sex the Chevalier latterly wore the attire. This curious question, however, was finally set at rest on the death of the Chevalier in May 1810, when the body was dissected in the presence of several professional gentleman, and it was certified, by an eminent surgeon, that the male organs were, in every respect, perfectly formed. APPENDIX. No. I. § 1.-Notice of Motion to put off a Trial for the Absence of a In the King's Bench. Witness. A. B. plaintiff, and C. D. defendant. Take notice, that this honourable court will be moved on, &c. or so soon after as counsel can be heard, that the trial of this cause may be put off until next- -term, on account of the absence of a material witness on the part of the defendant, and in the mean time all further proceedings be stayed. To Mr. E. F. plaintiff's attorney. Your's &c. G. H. defendant's attorney. § 2.-Affidavit in Support of Motion to put off Trial for the Ab In the King's Bench. sence of a Witness. A. B. plaintiff, and C. D. defendant. C. D. of, &c. the defendant in this cause, maketh oath and saith, that issue was joined in this cause in -term last past, and that notice was given for the trial thereof at the sittings within (or at the sittings_after) the said term: And this deponent further saith, that E. F. late of, &c. is a material witness for him this deponent in the said cause, as he is advised and believes, and that he cannot safely proceed to the trial thereof without the testimony of him the said E. F. And this deponent further saith, that in consequence of the notice of trial so given as aforesaid, he this deponent caused inquiry to be made, &c. (stating the nature and result of the inquiry made after the witness, and the time when he is likely to attend.) No. II. Demurrer to Evidence and Joinder. "Afterwards on the day, and at the place within contained, before Sir G. W. Knight, one of the barons of our lord the king, of * For form of plea puis darrein continuance, see ante, p. 134. |