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 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 (4), therefore the plaintiff must be nonsuited.

An action for use and occupation is maintainable without attornment upon the stat. 4 and 5 Ann. c. 16. s. 9, and 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.

i Lumley v. Hodgson, 16 East, 99.

(4) R. v. the Inhabitants of St. Paul's, Bedford, 6 T. R. 452. S. P.

CHAP. XLII.

WAGER.

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

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

Introduction.-Ir 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 Earl of March v. Pigot',

a 1 Lev. 33.

b 5 Burr. 2802. But see the observation 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.

(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

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. 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 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, ist, 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. Crickitt, a wager of a rump and dozen,

c Trin. T. 30 G. 3. B. R.

d C. B. E. T. 52 G. 3. 3 Camp. N.P.C. 168.

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 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 alle giance. 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 burthensome to him.

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.

II. Of Illegal Wagers.

1. WAGERS are illegal which are specially prohibited by positive statute.

To re

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. medy 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 made, that plaintiff should pay the defendant 20/. 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 10007, 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 plaintiìï 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 insuron lives, in consequence of a mischievous kind of gaming, which had been introduced by such insurances,

ances

e Jackson v. Colegrave, on error, Exch. f Kent v. Bird, Cowp 533. Ch. H. 6 W. 3. Carth. 338. Bovey

. Castleman, 1 Ld. Raym. 69.

wherein the assured had no interest. To remedy this evil it was enacted by stat. 14 Geo. 3. c. 48. s. k. "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 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 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, kittles, shovel-board, or in cock-fightings, 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 100/.

The construction which has been put on this section, may be gathered from the following case:

In debt for 100l. the plaintiff declared upon articles of agreement, purporting that the plaintiff and defendant should run a horse for 1007., and if the defendant lost, that 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

gRoebuck and another v. Hamerton, h Hedgeborrow v. Rosenden, 1 Ventr. Cowp. 737.

253.