Bunn v. Riker

Van Ness, J. The counsel for the plaintiff in error, denies, that, at common law, any wager is recoverable, wherein the parties have no other interest than that which they create by the wager itself. It is now too late to draw this point into discussion. The law appears to be settled, that some wagers form the proper ground of an action. It is worthy of remark, however, that as often as this question has been raised, there is scarcely a judge in England, from the time of the case of Da Costa v. Jones, down to the present day, who has not expressed his regret that such was the law. But that there is a class of wagers, to the recovery of which the law will not lend its aid, is conceded; and it, therefore, becomes necessary to inquire, whether the present wager belongs to that class. It was held in the case of Jones v. Randall, (Cowp. 37.) and Da Costa v. Jones, (Cowp. 729.) and in several of the more recent cases, cited on the argument, that wagers against the principles of sound policy are void. I consider this to be emphatically a wager of that description. It may involve an inquiry into the validity of the election of the present chief magistrate; — 435 — The counsel for the defendant in error insisted, that the certificate of the canvassers is made conclusive, by the statute, on this point. But is their certificate conclusive in every case ? Suppose one of the canvassers should eount the votes, and the rest certify the result ? Or, suppose it could be made to appear that their certificate was obtained by bribery, would it, notwithstanding, be conclusive ? Whether the certificate, when made, pursuant to the act, is decisive as to the election; and whether a ease may not occur, when it might be considered as a nullity, or as constituting the person in whose favour it is made, merely the governor, de facto, are points which it is not my intention even to discuss, much less to decide. We all recollect, that on one occasion, different Opinions were entertained and expressed with respect to them. They are questions, which, perhaps, no existing tribunal is competent to decide, should they unfortunately again arise. It is enough, that this wager may give birth to such a question, to pronounce it to be repugnant to the dictates of good policy. The discussion to which it gives rise, ought to be discouraged, unless the public good, or the due administration of justice, renders it unavoidable. It is a discussion calculated to endanger the peace and tranquillity of a community, already sufficiently heated and agitated. In the case of Atherfold v. Beard, (2 Term Rep. 610.) it was held, that a wager respecting the future amount of any branch of the public revenue was illegal, because it leads to an improper discussion, and is contrary to sound policy. The case in which the court of King's Bench has gone the greatest length, in supporting a wager, is that of Jones v. Randall. I have always considered that a very strange decision; and there is some reason to believe, that Lord Mansfield regretted that he had determined it, as he did. I infer this from what afterwards fell from him, in the case of — 436 — Da Costa v. Jones. “ Never,” says he, when the cast' of Jones v. Randall was cited, “ was a question more doubtful, how it would be decided, till it was actually determined.” A wager, between two voters, with respect to the event of an election of a member of parliament, laid before the poll began, was decided to be illegal, on the ground that it was corrupt, and against the fundamental principles of the British constitution; that it was a gaming contract, not to be encouraged, and of a dangerous tendency. (Allen v. Hearne, 1 Term Rep. 56.) If for such reasons, a bet of this description, was considered to be void •in England, how much is their force increased, when applied to an analogous case in our own country, in which the very existence of every department of the government, depends upon the free, and unbiassed exercise of the elective franchise. There can be no doubt, I think, that if this wager comes within the spirit of the last mentioned case, that it is void. What are the facts, as stated in the record ? The parties here are electors; Riker had already voted, but Graham had not; the bet was made on the last day of the election, in the city of New-York, and Graham resided in the middle district. I understood the defendant’s counsel to admit, that if Graham could have given his vote, that the judgment below must be reversed. Now it is for the defendant in error to show, that Graham was at such a distance from the town, in which he resided, and where only, I agree, he was entitled to vote, as to preclude the possibility of his getting there, before the. close of the poll. Nothing more is said about Graham’s place of residence, than that it was in the middle district. For aught that appears, the bet might have been made in the morning ; the court knows that the county of Rockland is in the middle district ; and there could be no difficulty in Graham’s going to almost any town in — 437 — that county, in season to give his vote. It is hardly expected that the court will intend any thing in support of such a contract as this; but without intending a great deal more than appears upon the record, Graham might have voted, had he been so disposed. For these reasons, I am of opinion that this wager is void. I could have wished that the court had been prepared to decide, whether the act of the 19th March, 1802, does not make all wagers illegal; I am strongly inclined to think it does. I do not, at present, however, mean to express any opinion, on the construction of that act. From the record it appears, the defendant in error has obtained judgment for the whole amount deposited in the hands of the stake-holders; hence it is not necessary to determine, whether the defendant can recover back his own deposit. I am of opinion, that the judgment below must be reversed. Kent, Ch. J. and Yates, J. were of the same opinion. Spencer, J. The objection to the first count is, that it is not alleged that, in point of fact, the defendant received the money acknowledged in the memorandum to have been received ; and that as the memorandum is not a note within the statute, it ought to have been averred, that the money was received by the defendant. The case of Lansing v. M'Killip decides, that written agreements, not within the statute, can only be enforced on the ground of a consideration, and that the acknowledgment of value received, would not be evidence of a consideration, but that the kind and nature of the consideration ought to be shown. The authority of that case is extremely weakened, if not en — 438 — tirely overruled by the case of Jackson v. Alexander.* If, however, the case of Lansing v. M'Killip, is still to be considered as law, there is this difference between it and the present case ; the precise consideration is confessed by the defendant, in the memorandum; ancf the only reason, which required an averment of the real consideration, where value was admitted to be received, was, that the court might judge whether, in reality, the consideration was such as to uphold the promise. The first count, then, seems to me to be free from objection, on the ground of consideration. The next objection is, that under the second count the facts stated in the bill of exceptions, could not be given in evidence, on the principle, that indebitatus assumpsit will not lie on a wager. It does not appear to be clearly settled that an indebitatus assumpsit will not lie on a wager; but it is settled, that it will lie against the stake-holder.† These observations dispose of the formal objections. The second question involves a, very important inquiry, though I cannot perceive that it is a difficult one. It has been contended, that all wagers are unlawful at common law. After the very able, and I think unanswerable opinions of Lord Kenyon, Justice Ashhurst, and Justice Grose, given in the case of Good v. Elliott,‡ which was a wager upon the fact, whether one Susannah Tye, had or had not, before a certain day, bought a certain waggon, I cannot think it necessary to enter upon the discussion of the question ; Lord Kenyon says, and cites a variety of cases in his support, that from the earliest times, the books all speak the same language. Lord Mansfield says, in the case of Da Costa v. Jones,§ that indifferent wagers upon indifferent matters, without interest to either of the parties, are allowed by the law of this country, so far as they have not been restrained by particular acts of parliament; and the restraints imposed in particular cases, support the general — 439 — rule.” Indeed, it appears to me impossible to read the argument of the judges, in the case of Good v. Elliott, •and examine the authorities they cite, without yielding to the position they maintain, that a wager upon an indifferent subject, is recoverable in courts of law. There are, undoubtedly, limitations to the rule, that wagers are lawful; wagers inciting to a breach of the peace, or to immorality, or which affect the feelings or interests of a third person, or expose him to ridicule, or libel him, and also wagers against sound policy, are illegal. Under those of the last description, may be classed the case of Allen v. Hearne,* which was a wager between two electors, before the poll began, on the election of the candidates, for whom they were partisans, and in which they had taken decided parts, on opposite sides. This was decided, on very sound principles, to be void, as being corrupt, in the eye of the law, and against the fundamental principles of the constitution, which required that the election of members of parliament should be free, and that every voter should be exempt from pecuniary interest in giving his vote, which could not be the case, when the electors were under a pecuniary influence. The present case is a bet on the election of the executive magistrate; and were the parties situated as they were in the case of Allen v. Hearne, most undoubtedly the bet could not be recoverable. But here Riker had already voted, and was, therefore, free from any influence the bet could have; and from the facts in the case, it appears, that Graham, though qualified to vote, and though he had not- voted, could not be influenced by the bet, because it was morally impossible for him to vote ; for the statute regulating elections allows him to vote only in the town or ward wherein he resides ; and the bet was laid in the city of New-York, and Graham resided in the middle district. The counsel for the plaintiffin error very candidly admitted, that from the situation of Graham, he could not vote, — 440 — and therefore could not, so far, be influenced in his conduct, as an elector. But the verdict of the jury, has, I think, settled this point; it was a matter of fact, peculiarly within their cognisance, whether Graham could vote at that election; by finding for the plaintiff below, they have virtually passed on that fact, and decided that he could not. Í will not intend, that the court below and the jury have disregarded the law on that point; after a verdict, every reasonable intendment should be made to support it. It was, however, contended, that bets of this kind, may produce an inquiry into the decision of the canvassers, and may involve the country in confusion. This argument, I think, cannot be maintained, since the statute renders the decision of the canvassers conclusive and final; thus excluding all inquiry into the purity and propriety of their decisions, as effectually as the law excludes such inquiry into the judgments of courts. The bet then is reduced to this, that the decision of the canvassers, certifying the one or the other candidates to be elected, decides the event, on which the wager was laid. The present wager, in my opinion, is by no means se alarming, as one upon the administration of the laws; and yet in the case of Jones v. Randall,* which was a wager of 50 guineas, whether a decree of the court of chancery would be reversed, on appeal to the house of lords, it was held by the whole court of king’s bench, that the wager was neither against law, nor sound policy. Under the circumstances of this case, I cannot perceive that the wager can be objected to, on either pf those grounds. It has been urged, that the 5th section of the statute to prevent horse-racing, and for other purposes, operates to render all wagers illegal; it enacts, “ that all and every contract thereafter to he made, and entered into, for or on account of any sum or sums of money, — 441 — or other thing, bet or staked, or depending on any such race or races as aforesaid, or concerning the same, or for or on account of any gaming by lot or chance, of any kind, or under any description whatever, shall be deemed and adjudged void in law.” &c. I apprehend, that under the terms gaming by lot or chance, betting on a contingent event cannot be included. Betting on an event does not, in common parlance, mean gaming. By the statute of 9 Anne, c. 14. from which our statute to prevent excessive and deceitful gaming, is, in substance, taken, all notes &c. given or executed by any person, where the whole or any part of the consideration shall be for any money, won by playing at any game whatsoever, are declared to be void. The-same statute enacts, that every person who shall at any time, or sitting, by playing at any game, lose in the whole, the sum of 25 dollars, and shall pay it, he may sue and recover it back of the winner. Now, if betting on a contingent event be gaming, the persons betting, undoubtedly, by the act of betting, play at " that game, and consequently betting upon any event, would be brought within the statute of Anne, and our statute to prevent excessive and deceitful gaming, an idea which, I presume, never has been entertained; for in England,* actions have been sustained on wagers in a variety of instances, since the statute of Anne, and this objection was never thought of, though the bets exceeded the sum of 10/. the sum beyond which, money lost by gaming, might be recovered back. I conclude, therefore, that the gaming mentioned in the 5th section of the statute to prevent horse-racing, must be some play of lot or chance, and that betting upon an indifferent subject, without any playing, never can. be comprehended within the statute. In the case of Good v. Elliott, Grose, J. denies that wagers are void, as gaming contracts. Lord Mansfield, in the case of Da Costa v. Jones, says, “ whether it would not — 442 — have been better policy to have treated all wagers, originally, as gaming contracts, and to have held them void, is now too late to discuss; they have too long, and too often been held good and Valid contracts.” The evidence of the fact, that Daniel D. Tompkins, was elected governor in 1807, appears to have been full; the defendant’s confession, and promise to pay the amount of the note, after he had seen Graham, were alone sufficient to warrant the jury in drawing the inference, that he admitted the bet to have been lost; but I perceive no objection to the evidence given by one of the canvassers. He stated, that by the canvass, Mr. Tompkins Was declared to be governor. Though the exemplification of the certificate might have been higher evidence, still the fact was shown sufficiently, and no inference could be raised against the defendant in error, in not producing the higher evidence. In my opinion, the judgment ought to be affirmed. Thompson, J. not having heard the argument in the cause, gave no opinion. Judgment below reversed. Footnotes [*] 3 Johns. Rep. 484. [†] 3 Salk. 176. 1 Bos. & Pull. 3. [*] 1 Term Rep. 56. [‡] 3 Term Rep. 693. [§] Cowp. 729. [*] Cowp. 37. [*] 5 Burr. 2865. Cowp. 37.