TER PARTIES. ment of freight and demurrage. ON CHAR- mises, a large sum of money, to wit, the sum of 8927. 10s. became due and payable to the said plaintiff, as for the freight of the said vessel for the voyage aforesaid, and primage thereon, according to the terms of the said charter-party, to be paid as in the said charter-party is mentioned and agreed, and a further sum of (637.,) as and for the demurrage, for the detention of the said vessel at Gibraltar and Malaga aforesaid, for the days of demurrage in the said charter-party mentioned, to be paid as therein mentioned, to wit. at, &c. yet the said defendants further contriving and intending as aforesaid, have not, nor hath either of them, paid to the said plaintiff the said two several sums of money, or either of them, or any part thereof; but to pay the same or any part thereof to the said plaintiff according to the terms of the said charter-party, or in any other manner, the said defendants have hitherto wholly refused and still do refuse so to do, contrary to their said promise and undertaking, to wit, &c.-[Add other counts, varying the statements, as circumstances may require, and counts for freight and demurrage, use of ship, work and labor, and common counts.] By the er, for damages, in detain ing the ship beyond the and for freight, murrage. For that whereas heretofore, and before the makimg of the promise and owners of undertaking of the said defendant, as hereafter mentioned, to wit, on, &e. ship against the date of charter-party,) in parts beyond the seas, to wit, at Hamburgh, to assignee of wit, at, &c. (venue) by a certain charter-party of affreightment then and the freight there made, it was mutually agreed between the said plaintiff, by one D. C. their agent in that behalf, therein described as Captain D. D. master of the good ship or vessel called the Gough, of B. measuring her register 126 tons or thereabouts, then laying at Hamburgh, and certain persons therein described as Messrs. G. & II. of Hamburgh merchants; that the said ship bedays of de- ing tight, staunch, and strong, and every way fitted for the voyage should, murrage, with all convenient speed, sail and proceed to Wells, (Norfolk) after having taken on board about one hundred tons of oil cakes, or more if the said primage, freighters should think proper to put a larger quantity of cakes on board the and de- said vessel the Gough, not exceeding what she could reasonably stow and carry, over and above her tackle, apparel, provisions, and furniture; and being so loaded, should therewith proceed to the port of War, before or so near thereunto as she could safely get, and there deliver the same to the said freighters or their assigns, they paying freight for the same, at the rate of 10s. sterling, and 10 per cent. primage for each English ton of oil cakes delivered, with no charges for pilotage and port charges during the said voyage, (the act of God, the king's enemies, fire, and all and every other damages and accidents of the seas, rivers, and navigation, of whatever nature and kind soever, during the said voyage always expected.) The freight to be paid in cash after the delivery of the cargo, fourteen running days being allowed for loading and discharging the oil cakes, days were to be allowed the said merchant, (if the ship was not sooner dispatched); and the said freighters to have the option of keeping the ship eight days on demurrage, Sailing of over and above the said laying days, at 57. sterling per day. And whereas also within a reasonable time after the making of the said charter-party, and before the making of the promise and undertaking of the said defendant hereafter next mentioned, to wit, on the day and year aforesaid, at Hamburgh aforesaid, to wit, at Lynn aforesaid, in the county aforesaid, the said ship being tight, staunch, and strong, and every way fitted for the said voyage, did, with all convenient speed, sail and proceed to W. Norfolk aforesaid, after having loaded and taken on board the said oil cakes and cargo, as skip. TER PARTIES. Defendant promises. greed on by the said charter-party; and did afterwards, to wit, on the 16th ON CHAR lay of November, in the year aforesaid, arrive at the port of W. aforesaid, to wit, at, (venue) aforesaid, with the said oil cakes and cargo on board, whereof Arrival of the said freighters and their assigns then and there had notice; and the ship with said plaintiffs were then and there ready and willing to deliver the same to cargo, &c. the said freighters or their assigns, according to, and upon the terms of the said charter-party. And the said plaintiffs in fact say, that afterwards, to becomes wit, on the day and year last aforesaid, to wit, at, (venue) aforesaid, the assignee. said freighters assigned to the said defendant, and the said defendant then Mutual and there became and was the assignee of the said oil cakes and cargo, and entitled to receive the same, and thereupon, heretofore, to wit, on the day and year last aforesaid, at Lynn aforesaid, in the county aforesaid, in consideration of the premises, and that the said plaintiffs, at the special instance and request of the said defendant, would deliver unto the said defendant, as such assignee, and suffer and permit him to take the said oil cakes and cargo, according to the said charter-party, and perform and fulfill all things in the said charter-party contained on the said plaintiffs' parts to be performed and fulfilled towards the assignee of the said oil cakes and cargo, he the said defendant undertook, and then and there faithfully promised the said plaintiffs to perform and fulfill all things in the said charter-party contained, on the part and in behalf of the freighters and their assigns, to be performed and fulfilled. And the said plaintiffs aver, that they, confiding in the said Delivery promise and undertaking of the said defendants aforesaid, afterwards, to wit, of cargo to on the day and year last aforesaid, at (venue) aforesaid, did deliver to and defendant. suffer and permit the said defendant, as such assignce as aforesaid, to take the said oil cakes and cargo, according to the said charter-party, and the said plaintiffs have performed and fulfilled all things in the said charter-party contained, on the said plaintiffs' part and behalf to be performed and fulfilled. detaining Yet the said plaintiffs in fact say, that the said defendant, not regarding his ship above said promise and undertaking, but contriving and intending to injure the the time said plaintiffs in this behalf, did not nor would, within the number of days allowed by the said charter-party as aforesaid in that behalf, load and discharge the said oil cakes and cargo; and on the contrary thereof the said plaintiffs in fact say, that the said freighters and the said defendant, kept and detained the said ship and vessel over and above the said fourteen running days, and the said eight demurrage days, at W. aforesaid, for a long time, to wit, for the space of two days, whereby the said plaintiffs were put to great costs, charges, and expenses, amounting, to wit, to the sum of 207. in and about the maintaining and keeping the master and mariners of the said ship or vessel, and during that time lost and were deprived of the use and profits of the said ship or vessel, to wit, at, &c. (venue) aforesaid. And Non-paythe said plaintiffs in fact further say, that by reason of the premises, a large ment of freight, sum of money, to wit, the sum of 747. 18s. became due and payable to the primage, said plaintiffs, as and for the freight of the said ship or vessel for the voyage and deaforesaid, and primage thereon, according to the terms of the said charter- murrage. party, to be paid as in the said charter party is mentioned and agreed; and a further sum of 501., as and for demurrage for the detention of the said ship or vessel, for the days of demurrage, in the said charter-party mentioned to be paid, as therein mentioned, to wit, at Lynn aforesaid, in the county aforesaid, whereof the said defendant hath always there had notice; yet the said defendant not regarding his said promises and undertaking, hath not yet paid the said last-mentioned two several sums of money, or either of them, or Breach in allowed. ON CHAR TER PARTIES. any part thereof, but to pay the same, or any part thereof to the said plaintiffs hath 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, account stated, and breach.] On a wager on a horse-race, IX. ON WAGERS. .. For that whereas, before and at the time of the making of the agreement and the promise and undertaking of the said defendant hereinafter next for a hunt- mentioned, a certain race for hunters' sweepstakes, amounting to a large sum er's sweep- of money, to wit, the sum of -7. was about to be run over the Nottingham stakes(x). course, to wit, at -and it was then and there expected that a certain [227] horse called and also certain other horses, would run the said race [ *228 ] (x) See other precedents, post; Herne, 76, 276; 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 horse-races against time on a highway, or for a stake of less value than 501. are illegal. 4 N. R. 1; 2 B. & P. 51, 51. 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 wager. 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 frirolous 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 Abbot, 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 determined, 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 wages legal, or not.-A wager upon an indifferent matter, which has no tendency to produce any public mischief or individual 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 between voters on the event of election (1 T. R. 56; 2 D. & R. 450.) Vide Bunn v. Riker, 4 Johns. Rep. 426. Lansing v. Lansing, 8 Johns. Rep. 454. Visch. er v. Yates, 11 Johns. Rep. 23; Yates v. Foot, 12 Johns. Rep. 1 (or in the event of a war (7 T. R. 585; 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 degrade 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 illagal. 3 Campb. 140. So is a wager on the result of a sparring exhibition. 1 Bing. 1; 7 J. B. Moore, 212. A wager, prejudicial to the interest or feeling 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 Camp. 152. A wager tending 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. ibid. Id. 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 a 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 as to one part, and contingent as to the other. 5 Burr. 2802. But a person who lays a 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 -7. of lawful money of Great Britain; but that if the said horse called should be ON WAGERS. (z). beaten by any or either of the other horses which should run as aforesaid, he the said plaintiff should pay to the said defendant the sum of -1. of [ *229 ] like lawful money. And the said agreement being so made as aforesaid, after- Mutual wards, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, in promises consideration thereof, and that the said plaintiff, at the 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 performed and fulfilled. And the said Averplaintiff in fact saith, that after making of 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, ning the said race, the said horse called other horses; and that in run did beat the said other horses so running as aforesaid, whereof the said defendant afterwards, to wit, on the wager cannot set it aside on the ground, that at the time when it was lain the opposite party had received information that he was mistaken; and it is too late for him, on his discovering his mistake, to countermand the authority of the stake-holder to pay over the money betted. 4 Campo 457; 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. 2 2639. But whilst the stake remains in the hands of the stakeholder, either party may sue him for the stake he deposited. 7 Price, 510; 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. 3 Taunt. 282; 4 Taunt. 474; 5 T. R. 405 acc.; 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, 381, in note, acc.-7 T. R. 535, contra. An agent who is authorized only to contract illegal debts, 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 maintain an acVOL. IL 21 tion against the loser for money paid, to re- Declaration. It is necessary, in an action 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. ments. ON WAGERS. sum of mo ed by the defend his horse (a). day and year last aforesaid, at &c. (venue) aforesaid, had notice; yet e said defendant not regarding the said agreement, nor his promise and undertaking so by him made as aforesaid, but contriving and fradulently intending, craftily and subtly to deceive and defraud the said plantiff 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, and the latter to meet any admission of the debt.] [ *230 ] For that whereas, before and at the time of the making of the agreement. On a horse- and the promise and undertaking of the said defendant hereafter next menFace agrec- tioned, the said plaintiff was the owner and proprietor of a certain filly, and ment for a the said defendant was the owner, and possessed of a certain other filly, to ney forfeit 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 deant's mak- fendant, that a race, to wit, a race of miles should be run by and being default tween the said fillies of them the said plaintiff and defendant at Chester, to in running wit, at the Chester races, to be holden in the year of our Lord — when the said fillies respectively would be two years old, for l. each, and that one half of that sum should be forfeited by the party 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 -1. so agreed to be forfeited, as half of the said sum of -1. as aforesaid. 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. Second count, stating the contract And whereas also heretofore, to wit, on the day and year aforesaid, at, &c. (venue) aforesaid, it was agreed between the said plaintiff and the said defendant, that a certain other filly of the said plaintiff, and a certain other more gene- A. D. 1815. (b) The day of the wager, or or about it. |