Mount & Wardell v. Waite

Kent, Ch. J. delivered the opinion of the court. ^ There are two questions arising upon this case. 1. Aré , , the plaintiffs entitled to recover the sums insured? 2. Are they entitled to a'return of the premium.? 1. A wager contract is void, if it be against the principles of public policy, equally as if it contravened a ' positive law. This was so decided in the case of Jones v. Randall. (Cowp. 37.) And the contracts iil question appear to me to be- clearly within the mischief, and against the policy, indicated by the act of the 7th of April, 1807, made to restrain the insurance of lottery tickets. Without adverting to other considerations which were urged upon the argument, this' objection is decisive. The statute declared it to be a public misdemeanor, “ to insure for or against the drawing-any ticket, or to receive any money in consideration of any agreement to repay any sum, if any such ticket should prove fortunate or unfortunate, or any other chance or event relative to the drawing of any such ticket, in any lottery authorized- by law.” The provisions in the statute do not reach this case, because the contract related to tickets in a foreign lottery; but the act of the 17th of February, 1809, extended the penalties and provisions óf the act of 1807, to all lotteries, public or private, foreign as' well as domestic. This last statute’ was subsequent to the making of the contracts before us, and therefore they are not within that statute. But can we say, after -the passing of the first act, that these contracts' were not against public policy? If it was a crime to make such a contract relative to [441] a ticket in a lottery authorized by law, could it be • J , deemed fit and politic to uphold such a. contract relative to a ticket in an unauthorized lottery ? I think not; and that, though the penalties of the act of 1807 do not apply to the case, so as to render the defendants indictable, yet the policy of the statute clearly applies, and ought to vacate the contract. 2. With respect to the return of premium, the English authorities differ widely. They are- in direct contradiction to each other, and there does not appear to be any well settled rule on the subject. We are certainly at liberty to follow those decisions of which our judgment most approves. The plaintiffs here committed no crime in making the contract. They violated no statute, nor was the tlie contract malum in se. I think, therefore, the maxim as to parties in pari delicto does hot apply, for the plaintiffs were notm delicto. We declare the contract void on principles of policy derived from the statute ; but it would be unconscientious for the defendants to retain the premium, and we promote justice by compelling them to refund it. If the plaintiffs it) making the contract had shown depravity of character, by the immorality of the contract, or disobedience to law, by an attempt to evade or resist it, I should then have been inclined to deny any assistance to them in the recovery of the premium. The authorities that are in point in favour of the return of premium in this case, and which I choose to follow, are Jacques v. Golightly, (2 Black. Rep. 1073.) and Lacansade v. White, (7 Term Rep. 535.) The opinion of the court, accordingly is, that the plaintiffs are entitled to the return of premium, and' no more. Judgment accordingly.