A.

cepted L. as the tenant; and the jury having found for the defendant, the Court refused to disturb the verdict. lets lands to B., who underlets to C. and others; during these tenancies A. gives notice to C. and the other undertenants to quit, and C. does quit, and the lands before occupied by him remain unoccupied for a year, and are then again let by B.; A. cannot recover against B. for the use and occupation of this land for the year. And semble, under these circumstances, an eviction might be pleaded to the whole demandy. The husband is not liable in an action for use and occupation2, upon an occupation by the wife dum sola, not at the request of the husband. In an action for use and occupationa; if it appear that the premises were let to the defendant for the purposes of prostitution, the action cannot be sustained, the contract being contra bonos mores; (3) but where the premises are not let to the defendant for the purposes of prostitution, the defendant cannot evade the payment of a fair rent, although she prove that she has used them for those purposes. In an action for use and occupation of a lodging under a weekly tenancy, where it did not appear that the lodging was originally let for the purposes of prostitution; it was holden, that the plaintiff could not recover the weekly rent which had accrued after he was fully informed that the defendant occupied the lodging for the purposes of prostitution.

Assumpsit for use and occupationd; on examination of a witness who proved the occupation by defendant, it appeared, that there had been an agreement in writing, but not stamped. It was contended, by plaintiff's counsel, that the agreement not having been stamped, was not binding on the parties, and that therefore the plaintiff might wave this, and go into evidence generally for use and occupation. It was

x Woodcock v. Nuth, 8 Bingh. 170: 1 M. and Sc 317.

y Burn v Phelps, 1 Stark. N.P. C. 94. z Richardson v. Hall, 1 Brod. and Bingh. 50.

a Girarday v. Richardson, 1 Esp. N. P. C. 13.

b Wiggins v. George, per Abbott, C. J. Middx. Sittings after E. T. 5 Geo. 4.

c Jennings v. Throgmorton, Ry. and M 251.

d Brewer v. Palmer, 3 Esp. N. P. C. 213.

(3) So the first publisher of a libellous and immoral work, e. g. the Memoirs of Harriette Wilson, cannot maintain an action against any person for publishing a pirated edition. Stockdale v. Onwhyn, 5 B. & C. 173. In Poplett v. Stockdale, 2 C. & P. 198, it was holden that the printer could not recover against the publisher.

insisted for defendant, that it appeared that defendant held under a written contract, and therefore the plaintiff was bound to give it in evidence. Eldon, C. J. was of this opinion, observing, that this being a specific contract between plaintiff and defendant, the plaintiff is bound to shew what that contract was: it may contain clauses which may prevent plaintiff from recovering; others for the benefit of defendant, which he had a right to have produced: but the contract not being stamped, it could not be given in evidence, (5) therefore the plaintiff must be nonsuited. An action for use and occupatione is maintainable without attornment

e Lumley v. Hodgson, 16 East, 99.

(5) R. v. the Inhabitants of St. Paul's, Bedford, 6 T. R. 452. S. P. But see R. v. Pendleton, 15 East, 449, 455, where a question had been agitated at the sessions upon the settlement of a person who had served first under unstamped articles of agreement, and afterwards for four years; Bayley, J. said, "It has been argued that inasmuch as the pauper served for some part of the time at least under a written instrument, unstamped, we cannot look at the instrument, even to see for what time it enured, and that no parol evidence could be given of any contract with reference to the subject matter of it. But though we cannot look at the unstamped instrument for the purpose of proving by it any agreement between the parties, for such is the general import of the stamp acts, yet the court may look at it to see whether it applies to other evidence of a contract between them. As if a contract in writing be made, not stamped, for the sale and delivery of certain goods on certain terms, the court, in an action for non-delivery of goods, upon a contract proved by parol evidence only, may look at the instrument to see whether it applies to the goods then sought to be recovered for: and if those goods were not included in the contract, parol evidence may be received of the contract sought to be recovered upon. So here, the court might look at the instrument to see the duration of the first contract under it, in order to guide them in receiving parol evidence of the subsequent service, to which it did not apply." An unstamped instrument may be looked at by the court for the purpose of seeing whether it requires a stamp, or is properly stamped, that being a part of the duty of the judges, with which the jury have nothing to do, and of which they are supposed not to take any cognisance. It may be looked at by the jury also for a collateral object, as was done in Gregory v. Fraser, 3 Campb. 454. [to prove or disprove the fraud of the plaintiff, in having made the defendant drunk]; but such an instrument cannot be read in evidence as a security; per Ld. Tenterden, C. J. delivering judgment in Jardine v. Payne, 1 B. and Ad. 670.

upon the stat. 4 & 5 Ann. c. 16, s. 9 & 10, by the trustees of one whose title the tenant (defendant) had notice of before he paid over his rent to his original landlord: although the tenant had no notice of the legal title being in the plaintiffs on the record.

A tenant of a house bound by agreement to keep it in tenantable repair, may quit without notice in the course of his term, if the premises become unwholesome to reside in, not from any default or neglect of his own, but from something over which he had no control, or none except at an extravagant or unreasonable expense.

f Per Bayley, B. in Collins v. Barrow, 1 M. and Rob. 112.

CHAP. XLII.

WAGER.

I. Introduction-Of Legal Wagers-Form of Action.
II. Of Illegal Wagers.

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. Hernea, 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 Earl of March v. Pigot,

a 1 Lev. 33.

b 5 Burr. 2802, recognized in Mead v. Davison, 3 Ad. and Ell 307. But see the observation of Heath, J. on this

case, in 3 Campb. 172. viz. that it was a case not to be cited, being of very doubtful authority See also Bland v. Collett, 4 Campb. 157.

(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

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 shew 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. 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 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 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. wagere of a rump and dozen, whether the defendant was older than the plaintiff, was holden to be legal. A wager on the

c Jones v. Randall, Cowp. 37. d Good v. Elliott, 3 T. R. 693.

e Hussey v. Crickitt, 3 Campb. 168.

life of Buonaparte. 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 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 burdensome to him.