
    Rice, v. Gist.
    All wagers are unlawful on their clear immoral tendency, and not to be recovered in Courts of Justice.
    Tried before Mr. Justice Frost, at Union, Spring Term, 1846.
    This was an action of assumpsit for the recovery of a wager. The declaration, in the first count, set out a conversation between plaintiff and defendant, respecting the amount of the sale-bill of the property of an estate, which had that day been sold; the plaintiff affirming that the sum of the sales, when added up, would equal 87000, and the defendant affirming the contrary; and that thereupon, in consideration that the plaintiff promised the defendant that if the sale-bill did not amount to $7000, he, the plaintiff, would give and deliver to the defendant a certain slave, named-, valued at $405; the defendant promised the plaintiff, that if the sale-bill did amount to $7000 he, the defendant, would give and deliver to the plaintiff a certain negro named Bill. The count then averred that the sale-bill did, in fact, exceed $7000; but set up no breach. The other counts were in indebitatus assumpsit, on which the presiding Judge intimated that the plaintiff could not recover.
    The jui’y were instructed that, in actions on promises, it was necessary for the plaintiff to set out and prove, as well the consideration as the promise; and that unless the plaintiff proved, in this case, a valid promise from himself to the. defendant, which the defendant might have enforced by an action against the plaintiff, in case the defendant had won the wager, the plaintiff would not have proved a sufficient consideration for the defendant’s promise.
    
      The evidence was then brought to the view of the jury. It was not proved whether the plaintiff bet another negro against Bill, or only the value of Bill. One witness thought that one negro was bet against another. Another witness did not remember whether the plaintiff bet another negro or only the value of Bill. It was attempted to be shewn in defence, that the parties were not in earnest, but that the whole matter was a joke.
    The jury were instructed that, if this proof satisfied them, that the wager was of one negro against another, the plaintiff could not recover, because it did not appear what negro the defendant might have claimed from the plaintiff if he had won the wager—and so there was no mutuality of promise between the parties. And that if the proof shewed a wager of money as the sum of $405, (the value of Bill,) to have been the stake offered by each party, then the proof did not support the count, and the plaintiff could not recover.
    The proof mentioned in the first ground of appeal was offered and objected. The jury found for the defendant, and afterwards gave a certificate, showing that they had done so, because the name and value of the negro staked by the plaintiff was not stated in the declaration, nor proved.
    The plaintiff appealed and moved for a new trial.
    1. Because his Honor charged the jury, that the blank in the plaintiff’s declaration should have been filled with the name of the negro staked by plaintiff against the negro Bill, staked by defendant, and proved. That the declaration and proof were defective in this particular, and plaintiff could not recover.
    2. Because the name of the boy staked by plaintiff formed no part of the consideration from plaintiff to defendant.
    3. Because the plaintiff having proved that he staked a negro, or the value of defendant’s boy Bill, shewed a valid and sufficient consideration to support the defendant’s promise to him.
    4. Because, if the declaration was defective, the defect was aided by the plea of general issue, upon which defendant'went to trial without noticing the defect, either by pleas, demurrer, or argument; therefore, it is respectfully submitted, his Honor erred in submitting to the jury, a question not made by the pleadings, and which, if made, would have been proper for the judgment of the Court.
    5. Because his Honor charged the jury that the bet had an immoral tendency.
    fi. Because the verdict is contrary to law and evidence.
    Heendon & Gaduekry, for the motion.
    Dawkins & Gist, contra.
    
   O’Neall J.

delivered the opinion of the Court.

The first and fourth grounds of the plaintiff’s motion seem, from the Judge’s report, to have been founded in mistake; and need therefore no comment.

The second and third grounds make the question, whether the Judge was right in saying to the jury, that to recover on a bet, there must be perfect mutuality: that is, whoever might be the winner, he could, from the terms of the bet, so designate the stake by proof as to entitle him to recover it. That this is a right view of the law, I do not entertain a doubt. Any other would lead to this strange result, that if one party were the winner, he might recover, while the other party, if he had been successful, could not recover, because he could not ascertain by proof what he had won. S uch a wager never could be regarded as an enforcible contract. In this case the evidence leaves it perfectly uncertain what the plaintiff bet;—a negro, or his value, the witnesses think was bet: but what negro or what sum, they have been unable to say. Under such circumstances, it is in vain for the plaintiff to say that he has made out a case, on which he can stand, in a court of justice.

On the 5th ground, if the Judge had charged the jury that the bet had an immoral tendency, I should have entirely agreed with him. For every bet, of this or any other kind, tends directly to beget a desire of possessing another’s money, or property, without an equivalent. Men, acted on by such influences, may easily become gamblers; and then the road to every other vice is broad and plain. In this very case, nothing, it seems to me, can be more to be regretted, than that brothers-in-law should have been employed in staking their own substance upon the amount of a part of their deceased father’s estate. But it docs not stop there, for out of an idle, angry bet, has grown an embittered law suit, which, if it has its usual tendency, may sow discord around the family altar, and sever for ever the dearest relations of life. This is, in itself, “an immoral tendency,”—hateful, horrible, and deformed, and one against which the law should as sedulously guard, as against any other.

Í agree fully, and so do a large majority of the Court, in the opinion of the Recorder, as expressed in Laval v. Myers, 1 Bail., 486, “that all wagers are unlawful, and not to be recovered in courts of justice.” We all admit that in England, wagers upon indifferent matters without interest to either of the parties, and in which there may be perfect fairness and mutuality, are allowed. But the Recorder has fully shewn by a review of all the cases, that the decision in DcCosta v. Jones, which gave rise to this doctrine, has been uniformly regretted in all the subsequent cases; and that the opinion of Judge Bullcr. dissenting from the majority of the Court, has met with universal approbation. Mr. Chitty’s late work on Contracts, 6th Amer. Ed., from the 3rd London Ed., 496, shews that die hostility of the English Judges has not at all abated. The cases referred to by him in Exchequer Reports, shew that they have refused in many instances to try cases on wagers until they had nothing else to do: and the utmost favor which such cases have been able to obtain, is, that they should be tried at soma time.

The restrictions upon the legality of wagers have been multiplied at every step by the Courts in England, as will be seen by referring to Chitty on Contracts, 496, 497. No one can read the English books without feeling that the Judges there loathe the fetters with which they are bound on this subject, and that they most sincerely desire to say if they could, wagers are unlawful and cannot be recovered.

jHere, fortunately, we arc under no such restraints. The case of Laval v. Myers, has opened the whole matter, with a very decided opinion from a very able Judge, (Recorder Prioleau,) against their legality, and a full concurrence in his views, by the well known and justly distinguished Judges of the Court of Appeals, Colcock and Johnson. This removed much of the force of Hasket ads Wooton, 1 N. & M’C., 180, if it even were a decision on this point. Judge Cheves, who delivered the opinion in that case, does not seem to have turned his powerful mind to the consideration of the point now before us. He assumed (on the authority of Goode v. Elliott, 3 T. R., 693, 695,) the principle to be law, that wagers are not illegal except “when forbidden by statutory provisions, when they are calculated to injure third persons, and thereby disturb the peace and comfort of society, or when they militate against the morality or sound policy of the State.” Fortunately, this dictum of a great Judge was not necessary to the decision of the case, which was for the recovery of $60 won on a horse race. This plainly could ..d be recovered under tho provisions of 9 Anne, ch. 14: and tbd. all which was necessary to be said; all beyond it was mere obiter. Hence, notwithstanding our great respect for every thing said by such a Judge as Cheves, we feel that this dictum opposes no obstacle to our adopting later and wiser views against the allowance of wagers.

The only cases of wagers which have been sustained in this State by the Court of Appeals, are cases on bets under £lQ won on horse races. They have been sustained under the exception in the statute; and hence are no authority in favor of other wagers. But I am prepared hereafter to declare them unlawful, on their clear immoral tendency, and thus to sweep from our Courts the whole body of wagers, great and small.

The motion is dismissed.

Richardson J., and Frost J., do not concur in holding that an action on a wager is not maintainable.  