
    William Laval v. John Myers.
    Charleston,
    April, 1830.
    A wager upon the result of the election for President of the United States, laid before the College of Electors had been chosen by the Legislature, although the members of the Legislature had already been elected by the people, is contrary to public policy, and no action can be maintained for its recovery.
    Tried in the City Court of Charleston, at November Term, 1829.
    This was a summary process for the recovery of a wager on the result of the last election for President of the United States. The wager was laid after the election by the people for members of the Legislature, huf before the College of Electors had been chosen by th'e Legislature. The defendant demurred, and the plaintiff joined in demurrer.
    His Honor, the Recorder, delivered the following judgment:
    The old cases upon the subject of wagers have been subsequently declared by different judges to be of little, or no value. Their legality was not made a question át the trial, 'but was always assumed ; and the Courts have since said, that were such cases now to be brought, they would be differently decided.
    Lord Ellenborough, in Gilbert v. Sykes, 16 East. 157, said, “ It is no new principle in the law, that if a contract have a tendency to a mischievous and pernicious consequence, it is void. I am aware that in old cases, precedents of which are to be found in Hearne’s Pleader, actions have been maintained upon wagers open to an objection of this sort, but not decided upon that ground, which was not adverted to. The first of these reported is Andrews v. Hearne, 1 Lev. 33, where the bet was upon the life of one, who was held to be king’ de jure; and yet no point was made as to the validity of the contract on. the ground of its impolicy.” Le Blanc, J. speaking of this case of Andrews v. Hearne, remarked, “ I have no hesitation in saying, that that bet would never have been sustained'in these days.” 16 East. 162. Lord Ellenborough, further observed, in reference to the ease of Da Costa v. Jones,’ Cowp. 729, which was upon a wager as to the sex of the person, who passed under the name of the Chevalier D’Eon, “that it was brought several times before the Court, before any objection was taken on the ground of its immoral tendency.” 16 East. 158. And in reference to Lord March v. Pigot, 5 Burr. 2802, which arose out of a conversation between two sons, as to which of their respective fathers would live the longest, upon which a third person had stepped' in and taken up the bet with one of the young gentlemen, Le Blanc, J. said, “ that case was considered chiefly on the doubt, whether or not it was a bubble bet, as one of the fathers happened then to be dead.” 16 East. 162.
    The great case, however, in which the legality of wagers in England is said to have been first fully argued and decided, is that of Da Costa v. Jones in 1778, Cowp. 729. But before that time there was one, reported in Bl. Rep. 19, by the title of Walkhouse v. Derwent and Larwood, which was deserving of more attention than it received ; and which, if followed, would' jjaye save/] a great deal of subsequent regret and embarrass,ment. A wager had been laid, that the Court of King’s Bench would quash an order of two justices in a certain cause; and articles were drawn, by which the defendants agreed to bring a certiorari to try it, which they never did. On their default a suit was instituted on the articles; on which the defendants moved that the proceedings might be staid, and the articles delivered up. The Court declined to hear it, using these words; “ We desire the gentlemen would make an end of it between themselves, and not-let us hear any more of it, it being a very improper thing.” In the marginal note Sir William Blackstone gives his understanding of the case thus : “ The Court will not decide wagers.” No notice appears to have been taken of this case in Da Costa v. Jones.
    In Good v. Elliott, 3 T. R. 702, Ashhurst, J. said, ‘As to the general ground, namely, whether an action will lie on any wager, that question does not now appeal- opeii to argument; it having been settled by so many authorities, both ancient and modern, and particularly in the case of Da Costa v. Jones, where Lord Mansfield, though he expressed a strong wish, that, the practice of laying wagers might, be abolished, said that indifferent wagers upon indifferent matters, without interest to either of the parties, are .certainly allowed by the law of this country, in so far as they have not been restrained by any particular act of Parliament; and the restraints imposed in particular cases support the general rule.” The decision of the Court conformed to this opinion ; but Buller, J. dissented toto codo, and was. opposed to wagers being countenanced by the Courts at all.
    The later opinions of the bench have approximated to his, as closely as they could with a due respect to this decided case. The following is the strong language of the judges in the case of Gilbert v. Sykes, 16 East. 150, already referred to, which was decided in 1812. .Lord Ellenborough, C. J. after shewing'that the old cases had been ruled, without considering the impolicy of the practice, said, “ Upon the whole therefore, not without some degree of doubt, whether Mr. Justice Buller was not right, in saying, that no wagers ought to be sustained, where the parties have no special interest in the subject matter; at any rate, where the subject matter of the wager has a tendency injurious to the interests of mankind, I have no doubt in saying, that it Ought not to be sustained.” 16 East. 159. Le Blanc, J. said, “ It has been often lamented, that actions upon idle wagers should ever have been sustained in Courts of justice. The practice seems to have prevailed before that full consideration of the subject, which has been had in modern times: but the frequent discussions of it in these times has so far satisfied the minds of most lawyers, that they are now agreed, that objections would have lain in many cases of wagers, that have formerly been maintained without noticing such objections ; and it is now clearly settled, that the subject matter of a wager must, at least,be perfectly innocent in itself, and must not tend to immorality or impolicy.” Ib. 161. Bayley, J. said, “ The discussion which has been had of this case has strongly illustrated the inconvenience of countenancing idle wagers in Courts of justice. It occupies the time of the Court, and diverts their attention from causes of real interest and concern to the suitors; and Í think it, would be a good rule, to postpone the trial of every action upon idle wagers until the Court had nothing else to do.” lb. 162.
    In Henkin v. Guerss, 12 East. 247, the Court expressed itself With unusual warmth on the subject. The bet was, whether a person could be lawfully held to bail, on a special original, for a debt under £40. There was nothing immoral in this; but what said the Court ? “ Courts of justice were constituted foi* the purpose of deciding really existing questions of right between the parties; and were not bound to answer whatever impertinent questions persons thought proper to ask them ita the form of an action upon a wager. And although there was nothing immoral in the subject of this wager, they considered if an extremely impudent attempt to compel the Court to, give an opinion upon an abstract question of law, not arising out of preexisting circumstances,^ in which the parties had an interest.” The Court refused to hear the case.
    So a cause coming on to be tried before Lord Loughborough, in which the plaintiff declared upon a wager, “ whether there are more ways than six of nicking seven on the dice, allowing seven to be the main, and eleven a nick to seven,” his lordship' ordered it to be streak out of the paper; and the Court of Common Pleas afterwards refused leave to restore it. Brown v. Leeson, 2 H. Bl. 43.
    So too in Squires v. Whisken, 3 Camp. 140, which was upon a wager on a cockfight not prohibited by any statute, Lord El-lenborough refused to hear the case; first, because “ cockfighting must be considered a barbarous diversion., which ought not to be encouraged or sanctioned in a Court of justice.” And secondly, becausé such wagers “ tend to the degradation of Courts of'juslice; for it was impossible to be engaged in ludicrous inquiries of this sort, consistently with that dignity, which it is essential to the public welfare, that a Court of justice should always preserve.”
    These cases shew, the strong leaning of the Courts in Great-Britain, at the present day, to get rid of a rule transmitted to them through the inadvertence of their predecessors, and which has trammelled and fretted them, whenever they have been called on to apply it. Their universal regret, with the various reasons for it, has satisfied my mind, that when the Courts entertained actions upon wagers, which were unconnected with the ends of justice, they mistook the common law. For it does appear to- be an extraordinary proposition, that Courts of justice, established to determine on the applicability of the law to the acts and contracts of mankind, should be at the disposal of all persons who may think proper to submit to them the decision of idle bets upon indifferent subjects, and thereby also be made to sanction the practice of gambling. . This point has never yet been ruled in this State, that I am aware of, and I shall not be the first to recognize such a doctrine. 1 take the rule of law to be, that no action for a wager can be maintained, unless it be upon a feigned issue, ordered by a Court in furtherance of justice.
    But even according to the law now prevalent in England the present action cannot be sustained. The subject matter of the bet must be perfectly innocent, and not tend to immorality or impolicy. This all the English judges agree to. The present wager is between two citizens of this State on the event of the late presidential election: they had, before betting, both voted for members of the State Legislature, whose office it was to choose the electors of President; but such choice had not yet been made. Had. the bet been made prior to the election for members of that Legislature, it would have been within the principle of Allen v. Hearn, 1 T. R. 56; where it was decided, that a wager between two voters, with respect to the election of a member of Parliament, laid before the poll began, was illegal, because it created a pecuniary influence interfering with' the voter’s giving his vote freely, and affording a color for bribery. This, to be sure, implies that the influence should be such as would affect the voter himself, and not a third person meTrely; and such was the principle of the case of Jones v. Randall, Cowp. 37. But 1 take the general principle; that the wager must be innocent, and have no improper tendency, however remote. Can that be said in the present case? It gives each better a pecuniary, and therefore improper, interest in the election, or defeat, of a presidential candidate. It is true, that neither of the parties had a voice in it; but the country has a deep interest in preserving the perfect purity of this election, and whatever gives a citizen an improper motive to promote, or obstruct the elevation of a candidate, tends to affect that purity. “ No matter,” to use the language of Lord Ellenborough in Gilbert v. Sykes, “ how infinitely remote the probability of any mischief in fact arising from it, it is deemed void on account of its tendency" 16 East. 158. It is admitted by the plaintiff’s counsel, that if the bet had been made by a member of the Legislature, who had a vote in the choice of electors, it would have been, void ; but let it only be imagined, that a large body of citizens should create in themselves a deep pecuniary interest in such a question, and it cannot be'denied, that its tendency would be to influence that small body of voters in their choice of electors: and indeed the electors themselves might be imperceptibly affected by it.
    But another mischievous tendency of this practice is the aggravation of party spirit. This at all times of election runs high enough already for the safety of the public peace: add to it the stimulus of a high wager, and you throw gunpowder into the flames. - You will create hostilities and feuds of the most deadly character; and set up a man’s interest against his public virtue. But it is needless to dwell on this topic; for no one can deny, that whatever tends to excite one class of citizens violently against another at elections in this country, has an impolitic tendency, and should be avoided:. and it seems to me, that gir-ing a pecuniary loss or gain on the event, would be the readiest mode of raising this excitement,
    In New-York, it has been decided, in the cases of Bunn v. Riker, 4 Johns. 426, and Lansing v. Lansing, 8 Johns. 354, that a bet involving an inquiry into the validity of the election of Governor of the State, whether made before or after the closing of the poll, was void on principles of,public policy. And in Vischer v. Yates, 11 Johns. 28, Kent, C. J. after recognizing the authority of these cases, said, “ And when we consider the importance of popular elections to the constitution and liberties .of tins country, and that the value of the right depends upon the independence, moderation, discretion, and purity with which it is exercised, we cannot but.be disposed to cherish a decision, which declares gambling upon such elections to be'illegal, as being founded in the clearest and most incontestable principles .of public policy.”
    It has also been decided in Pennsylvania, in the case of Smith v. McMusters, 2 Browne, 182, that ‘‘wagers upon the result of an election, whether laid before or after the election, are illegal and void.” Wot having the book, but taking this note from Wharton’s Digest, 597, 1 do not know the. nature of the election spoken of, noi by whom the bet was made.
    Upon every view, then, which 1 have been able to take of this case, I am of opinion that the wager is illegal, and that the action ought not. to be entertained. The case is therefore stricken from the docket.
    The plaintiff now moved the Court of Appeals, that the case plight be ordered to be restored to ihe docket; on the ground, that the wager was lawful, and that the plaintiff was therefore intitled to judgment on the demurrer.
    Axson, for the motion,
    cited Hasket v. Wootan, 1 N. & M. 180, in which the authority of Good v. Elliott, 3 T. R. 702, had been distinctly recognized by the whole Constitutional Court.Mr. Justice Cheves, who delivered the opinion of the Court, laid down the law to be, that “wagers are not illegal, merely as wagers. They ar.e only illegal, when forbidden by some statutory provision; when they are calculated to injure third persons, and thereby disturb the peace and comfort of society; pr when they militate against the morality, or sound policy of the State.”
    
      The general legality of wagers was then no longer an open •question; and it was equally clear, that the wager in this case was not within any of the exceptions. The ground of objection wa«, that it supplied an improper influence in the discharge of a public duty ; but the law is clear, that the wager must refer to a duty to be performed by the parties themselves, and not to one to be performed by third persons. Allen v. Hearn, 1 T. R. 56, Jones v. Randall, Cowp. 37. The cases in New-York and Pennsylvania, which were cited to the contrary, are neither binding on this Court, as authority ; nor is there any thing in thq reasoning of the judges, to induce a departure from the established rule. The dissenting opinion of Spencer, J. in Bunn v. Riker, 4 Johns. 437, may be favorably contrasted with that of the majority of the Court.
    Seymour, contra.
    
    What was said by Cheves, J. in Hasket v. Wootan, was merely obiter dictum, and did not enter into the actual decision of that case. His Honor the Recorder’s opinion, that this point had never been ruled in this State, is therefore unimpugned.
    The New-York, and Pennsylvania cases rest upon reasoning peculiarly applicable to the institutions of this country, and are on that account deserving of higher consideration than the English cases on analogous questions. It is however a work of supererogation to add a single word to the argument of the Recorder.
   Colcock, J.

delivered the opinion of the Court.

We concur with the Recorder in the sound and elaborate view which he has taken of the doctrine on this subject, as applicable to the present case, and the motion is therefore dismissed.

Motion refused.  