ON TER PARTIES. CHAR- wholly neglected and refused, and still doth neglect and refuse, contrary to his said promise and undertaking, to wit, at, (venue) aforesaid. [Add common counts for freight and demurrage, as ante, 61, 64; and a count for the use and hire of the ship, as ante, 60, work and labor, money counts, acount stated, and breach.] On a wa. ger on a horse-race for a hunt er's sweep IX. ON WAGERS. For that whereas, before and at the time of the making of the agree ment and the promise and undertaking of the *said defendant hereinafter next mentioned, a certain race for hunters' sweepstakes, amounting to a [*227] large sum of *money, to wit, the sum of -l. was about to be run over [*228] the Nottingham course, to wit, at and it was then and there expected stakes (x). (x) See other precedents, post-Herne, 76, 176.-Bro Red. 29-Plead. A. 97, 143, 216.-Morg. Prec. 192.-1 Wentw. 100 to 119-2 Wentw. 541, 3, 4. 10 East, 22.-3 T. R 693.-16 East, 150. Horse racing, how far legal.-A wager on a horse-race is legal, if the sum bet do not exceed 101. and provided the race, which is the subject of the bet, is run for the sum of 501. or upwards, or 251. deposited by each party, 2 Campb. 438-3 T. R. 705.-2 Stra. 1159.-2 Wils. 309.-2 Bla. Rep 706. 4 Burr. 2433-5 T. R. 1.-2 B. & P. 51.-9 Ann. c. 14.-13 Geo. c 19. But horseraces against time on a highway, or for a stake of less value than 50%. are illegal. 4 N. R. 1-2 B. & P. 51, 54. When the game itself is illegal, then no action can be maintained for a wager respecting it, however small the bet. See infra. How far a Judge may refuse to try a wa ger-A Judge has, it seems, a right to exercise his discretion, whether he will try a cause between the parties relative to an idle or frivolous wager, as a dog-fight, or the like, though, if he suffer it to be tried, and the wager was not illegal, the verdict will not be disturbed. Per Abbott, C. J. in 6 D. & R. 27.-1 Ry. & Moo. 213.-1 Car. & P. 613. S. C. 2 H Bla, 43-And see Chit. Col. Stat. vol. i. 419, notes.-7 D. & R. 130. But it should seem, that if one of the parties to an illegal or frivolous wager, demands his deposit from the stakeholder before the event has been determiued, or before the money has been paid over, he has a right to insist on the trial of the cause in order to recover back his money. Id. ibid.-7 Price, 540-8 B. & C. 221-6 D. & R. 28.-3 Campb. 140. 2 Younge & Jerv. 156. Chit. jun. on Contracts, 2d ed. 394, 395. What wagers legal, or not -A wager upon an indifferent matter, which has no tendency to produce any public mischief or individ. ual inconvenience, is legal; but to make the wager legal, the subject-matter of it must be perfectly innocent, and have no tendency to impolicy or immorality. 3 Chit. Com. Law, 82.-Cowp. 37-3 T. R. 693.-1 Salk 356, n.-5 Burr. 2802-1 Ld. Raym. 69-3 Salk. 14, 176-16 East, 161-A wager be tween voters on the event of an election (1 T. R. 56.-2 D. & R. 450.) (Vide Bunn v. Riker, 4 Johns. Rep. 426. Lansing . Lansing, 8 Johns. Rep. 454. Vischer . Yates, 11 Johns. Rep. 23. Yates v. Foot, 12 Johns. Rep. 1 (or in the event of a war (7 T. R. 535.-1 T. B. 57-3 B. & P. 194), or concerning the produce of the revenue, as of the hop-duties (2 T. R. 610.—2 B. & P. 130,) or tending to inconvenience or de. grade the courts of justice (2 Hen. Bla. 43. -12 East, 247.-3 Campb. 140.-1 Car. & P. 163.-1 Ry. & Moo 213.—7 Price, 540. 8 B. & Cres 221-6 D & R. 28.-Supra), or concerning an abstract question of law or legal practice, in which the parties have no interest (12 East, 247), is illegal and void. A cock-match, or a wager upon it, is illegal. 3 Campb. 140. So is a wager on the result of a sparring exhibition. I Bing. 1.-7 J. B. Moore, 212. A wager, prejudicial to the interest or feelings of a third person, as on the sex of a person, is illegal. Cowp. 729.-2 Lev. 161.-1 B. & A. 683. A wager, whether an unmarried woman has had a child was held void. 4 Campb. 152. A wager tend ing to restrain marriage is void. 10 East, 22. A wager on the life of Bonaparte was held void. 16 East, 150. (See Phillips v. Ives, 1 Rawle, 36.) A person may lay a wager upon his own age. 3 Campb. 168. There is no illegality in betting a rump and dozen. Id. ibid. By the 9 Ann. c. 14. s. 15. all written securities given to secure the payment of money won at any game are void. See 3 Stark, 1-1 Wils. 220-2 Wils. 36-Chitty on Bills, 78, 7th edit. But an action of assumpsit will lie to recover money won at play at a legal game not amounting to 101. 1 Esp. Rep. 235. Supposing the subject-matter of the wager to be legal, the point must not be certain that a certain horse called and also certain other horses, would run the said race over the said course, for the said stakes, to wit, at, &c. (venue) and thereupon, heretofore, to wit, on, &c. (y) at, &c. (venue) aforesaid, it was agreed by and between the said plaintiff and the said defendant, that if the said horse called —, in running the said race, should beat the said other horses which should run the said race over the said course, for the said stake, he the said defendant should pay to the said plaintiff the sum of -. of lawful money of Great Britain; but that if the said horse called ON WAGERS. (z). should be beaten by any or either of the said other horses which should run as aforesaid, he the said plaintiff should pay to the said defendant the sum of -l. of like lawful money. And the said agreement being so [*229] made as aforesaid, afterwards, to wit, on the day and year aforesaid, at, &c. Mutual (venue) aforesaid, in consideration thereof, and that the said plaintiff, at the promises special instance and request of the defendant, had then and there undertaken, and faithfully promised the said defendant to perform and fulfill the said agreement in all things, on the said plaintiff's part and behalf to be performed and fulfilled; he the said defendant undertook, and then and there faithfully promised the said plaintiff to perform and fulfill the said agreement in all things, on the said defendant's part and behalf to be perform- Avered and fulfilled. And the said plaintiff in fact saith, that after the making of ments. as to one part, and contingent as to the other. 5 Burr. 2802. But a person who lays a wager cannot set it aside on the ground, that at the time when it was lain the opposite party had received informa. tion that he was mistaken; and it is too late for him, on his discovering his mistake, to countermand the authority of the stakeholder to pay over the money betted. 4 Campb. 157-See 5 Burr 2639. Action to recover deposit money--It has been decided, that a stake holder is bound to retain the money till one of the parties be clearly entitled to receive it; and if he unduly pay it over to either party not entitled to it, he will be liable to repay the stake.5 Burr. 2639. But whilst the stake remains in the hands of the stake-holder, either party may sue him for the stake he deposited. 7 Price, 540.-8 B. & Cres, 221. And money deposited on an illegal wager may be recovered by either party from the stake holder, before it has been paid over, whether the wager has been determined or not. Taunt 252-4 Taunt. 474-5 T. R. 405. ace-3 Esp. 253, semble contra. But an action cannot be maintained by the loser of an illegal wager after the sum has been paid to the winner; for when both parties are particeps criminis, the rule is, that in paridelicto potior est conditio possidentis. 6 T. R. 575-1 East, 96.-8 East, 3351, in note, acc.-7 T. R 535, contra. An agent who is authorized only to contract illegal bets, cannot, if he loses, pay the winner without an express direction so to do. 4 Taunt. 165. Where a dinner is ordered at a tavern by the authority of two persons who have laid a wager of a rump and dozen, if the winner pays the bill, he may VOL. II. 22 maintain an action against the loser for mon- 168. Declaration.-It is necessary, in an action against the loser of a wager, to state the special circumstances, and the wager cannot be recovered from him under an indebitatus count. 6 Mod 129.-12 Mod 81-3 Lev. 118-Carth. 338.-Ld. Ray. 69.-Salk. 23. 3 T. R. 700. But the stake may be recovered from the stake-holder upon a common count for money had and received. 6 Mod. 128.-12 Mod. 81.-In the declaration against the loser, mutual promises should in general be stated: and though it has been usual to allege that a discourse was had, &c. as in the case of feigned issues (3 T. R. 693), that form is unnecessary, and it is sufficient to state as inducement the expectation of the event upon which the parties betted, and then show the agreement, &c. of the parties, with other proper averments of the events on which the right of the action depends. If a man agrees to ride without a whip or stick, or other arms, an allegation that he rode without whip and stick, or other arms, is a sufficient averment of performance; at least, it is good after verdict. 2 Ld. Raym. 1366. Plea. See a plea of special denial that plaintiff won the wager, 1 Wentw. 101; but the general issue is the most usual plea. (y) The day of the wager, or about it. (z) Where an agreement has been stated, there seems to be no occasion for the statement of mutual promises, 2 New Rep. 62. 3 Bingh. 470, and see, in general, as to the statement of mutual promises, supra, ante, vol. i. 265. ON WAGERS. agree money forfeited by the de fendant's making default in running the said agreement, to wit, on the day and year aforesaid, at the Nottingham course aforesaid, to wit, at, &c. (venue) aforesaid, the said race for the said stakes was run between the said horse called -, and divers, to wit, other horses; and that in running the said race, the said horse called did beat the said other horses so running as aforesaid, whereof the said defendant afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, had notice; yet the said defendant not regarding the said agreement, nor his said promise and undertaking so by him made as aforesaid, but contriving and fraudulently intending, craftily and subtly to deceive and defraud the said plaintiff in this behalf, hath not as yet paid the said sum ofl. or any part thereof to the said plaintiff, although often requested so to do; but hath hitherto wholly neglected and refused, and still neglects and refuses so to do, to wit at, &c. (venue) aforesaid.-[If the precise terms of the race, or the bet be doubtful, insert another special count, and add the counts for money had and received, and the account stated; the first on the supposition of the defendant's having received the deposit money, aud the latter to meet any admission of the debt.] [*230] For that whereas, before and at the time of the making of the agree On a ment, and the promise and undertaking of the *said defendant hereafter horse-race next mentioned, the said plaintiff was the owner and proprietor of a certain ment for filly, and the said defendant was the owner, and possessed of a certain a sum of other filly, to wit, at, &c. (venue). And thereupon, heretofore, to wit, on, &c. (b) at, &c. (venue) it was agreed by and between the said plaintiff and the said defendant, that a race, to wit, a race of miles should be run by and between the said fillies of them the said plaintiff and defendant at Chester, to wit, at the Chester races, to be holden in the year of our Lord Lord when the said fillies respectively would be two years old, for his horse-l. each, and that one half of that sum should be forfeited by the party (a). making default, in causing his filly to run the said race; each of the said fillies to carry eight stone. And the said agreement being so made as aforesaid, afterwards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration thereof, and that the said plaintiff, at the special instance and request, &c. [Here state mutual promises, as ante, 228.] And the said plaintiff in fact saith, that although the Chester races, in the year of our Lord aforesaid, were had afterwards, to wit, on the day and year aforesaid, at, &c. aforesaid, and the said filly of the said plaintiff was then and there ready and prepared to run the said race, and for that purpose was then and there, to wit, on the day and year aforesaid, duly started with the said weight of eight stone, so agreed upon as aforesaid, and did then and there proceed on the said race: yet the said defendant not regarding the said agreement, nor his said promise and undertaking so by him made as aforesaid, then and there wholly neglected and omitted to cause the said filly of the said defendant to run the said race, and therein wholly failed and made default, and thereby the said defendant then and there forfeited and became liable to pay to the said plaintiff the sum of -l. so agreed to be forfeited, as half of the said sum of -l. as aforesaid. (a) See preceding form and notes. The above form, after several objections taken to it was held sufficient, and the plaintiff recovered, A. D. 1815. (b) The day of the wager, or about it. Yet the said defendant, although often requested so to do, hath not yet paid the same, or any part thereof, to the said plaintiff, but hath hitherto altogether neglected and wholly refused, and still neglects and refuses so to do, to wit, at, &c. (venue) aforesaid. CN WAGERS. erally. [*231] And whereas also heretofore, to wit, on the day and year aforesaid, at, Second &c. (venue) aforesaid, it was agreed between the said plaintiff and the count, sta ting the said defendant, that a certain other filly of the said plaintiff, and a certain contract other filly of the said defendant, should, at the Chester races, in the year more genof our Lord aforesaid, run a race against each other, to wit, a race of miles, for the sum of -l. each, and that in case of default by either the said plaintiff or the said defendant in causing the said race to be run, the sum of -l. half of the said sum of ―l. should be paid by the party making such default to the other of them. And the said lastmentioned agreement being so made as aforesaid, thereupon, heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in consideration thereof, and that the said plaintiff had then and there undertaken, &c.-[Here state mutual promises, as ante, 228.] And the said plaintiff in fact saith, that although the Chester races, in the year of our Lord aforesaid, were had afterwards, to wit, on, &c. the day and year aforesaid, at, &c. (venue) aforesaid, and although he, the said plaintiff, was then and there ready and willing to perforn and fulfill the said last-mentioned agreement on his part, and for that purpose did cause the said last-mentioned filly of the said plaintiff, to attend the said races on the day and year last aforesaid, in order to run the said last-mentioned race, and to proceed upon the same, and to go the distance so agreed upon as last aforesaid, to wit, miles to wit, at, &c. (venue) aforesaid; yet the said defendant not regarding the said last-mentioned agreement, nor his said last-mentioned promise and undertaking, but contriving and intending craftily and subtly to deceive and defraud the said plaintiff in this respect, wholly neglected and omitted to perform and fulfill his part of the said last-mentioned agreement, and neglected to cause or procure his said filly to be present, and run the said race as aforesaid; whereby, and by means of the premises, he the said defendant became liable and ought to have paid to the said plaintiff the sum ofl. as a forfeit for such last-mentioned default, according to the tenor and effect of the said agreement so made as last aforesaid. But to pay the same, or any part thereof, he the said defendant hath from thence hitherto wholly refused and neglected, although he was afterwards, to wit, on the day and year aforesaid, and oftentimes afterwards requested by the said plaintiff to pay the same, to wit, at, &c. (venue) aforesaid. Third forfeit a And whereas also heretofore, to wit, on the day and year aforesaid, at, count, on &c. (venue) aforesaid, in consideration that the said plaintiff, at the like a mutual special instance and request of the said defendant, had then and there un- promise to dertaken and faithfully promised the said defendant, that the said plaintiff sum of would, at the Chester races, then expected to be holden in the year of our money by Lord the party aforesaid, cause and procure a certain filly of the said plaintiff, not runto run a race with and against a certain filly of the said defendant, for. ning. each, or would forfeit to the said defendant the sum ofl. he the said [*232] ON WAGERS. For mo ney won by betting at a horse race (c). defendant undertook, and then and there faithfully promised the said plaintiff, that he the said defendant, would, at the said Chester races, in the year of our Lord — aforesaid, cause and procure a certain filly of the said defendant, to run a race with and against the said filly of the said plaintiff, for —l. each, or would forfeit to the said plaintiff the like sum of —l. And the said plaintiff in fact saith, that although he, the said plaintiff, confiding in the said last-mentioned promise and undertaking of the said defendant afterwards, to wit, on, &c. the said Chester races being then holden in that year, did produce and have ready the said last-mentioned filly of the said plaintiff, to run the said race with and against such filly of the said defendant as aforesaid, for the said sum of -. each, and was then and there, to wit, at, &c. (venue) aforesaid, ready and willing to cause such filly to run the same race; whereof the said defendant, then and there, to wit, on the day and year aforesaid at, &c. (venue) aforesaid, had notice; yet the said defendant, not regarding his said last-mentioned promise and undertaking, did not, nor would produce, or cause or procure the said last-mentioned filly of the said defendant, to run the said race with or against the filly of the said plaintiff, at the said Chester races, but wholly neglected and omitted so to do: by means whereof he, the said defendant, then and there forfeited to the said plaintiff the said last-mentioned sum ofl. according to the tenor and effect of the said last-mentioned promise and undertaking, and became liable to pay, and ought to have paid the same to the said plaintiff'; yet the said defendant, not regarding his said last-mentioned promise and undertaking, but contriving, and fraudulently intending, craftily and subtly to deceive and defraud the said plaintiff in this respect, hath not, (although often requested so to do), as yet paid the said sum ofl. so forfeited as last aforesaid, or any part thereof, to the said plaintiff, but hath hitherto wholly neglected and refused so to do, and still doth neglect and refuse, to wit, at, &c. (venue) aforesaid.-[Add a count on an account stated, and breach.] For that whereas, before and at the time of the making of the promise and undertaking of the said defendant hereafter next mentioned, a certain race was intended, and then shortly about to be run, at a certain place called in the county of, by and between a certain horse called and a certain horse called for a certain piece of plate of great value, to wit, of the value of 100l. (d), to wit, at, &c. (venue) and thereupon, heretofore, to wit, on, &c. at, &c. (venue) in consideration that the said plaintiff, at the special instance and request of the said defendant, had then and there undertaken and faithfully promised the said defendant [*233] *to pay him the sum ofl. of lawful money of Great Britain, in case the said horse called in the event of the said race, should win the said piece of plate, so intended and about to be run for as aforesaid, he the said defendant undertook, and then and there faithfully promised the said plaintiff to pay him the sum of -l. in case the said horse called should not, in the event of the said race, win the said piece of plate so intended and about to be run for as aforesaid; and the said plaintiff in says, that the said race, so about to be run as aforesaid, was after fact (c) See form, 2 Wentw. 545. See note to form, ante, 226. race must have been for a prize of 501. or upwards, 4 T. R 1; but 251. on each side (d) See form and note, ante, 226. The will suffice, 4 Burr. 2433. Ante, 226, note. |