Columbia Bank & Bridge Co. v. Haldeman

The opinion of the Court was delivered by Huston, J. As long ago as the time of Lord Hare, it was decided (Cartheio 252) that every contract made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself does not mention that it shall be void, and only inflicts a penalty on the offender; and this has been fully recognized in the case of Smith v. Mitchell, (1 Binn. 118). The case of Pickering v. Reynolds, (4 Burr. 2049), has been [235] cited and relied on. Great llames have often, in courts as well as out of them, given currency to opinions which will not bear examination. The distinction there taken between acts mala in se and mala prohibita, when applied to actions in court on contracts, is contrary to the cases above cited, and the settled law of England and this State. 5 Eng. Com. Law 255-7. The case of Scott v. Swan, (11 Serg. & Rawle 155-164), was in some measure affected by the authority of that case; but even the rule there laid down, that a plaintiff cannot recover where, by his own showing, he claims under an illegal contract, will not avail the plaintiff, for the whole nature of the transaction appears on the face of the bond on which he sues; but in Smith v. Mitchell, and most of the cases cited, the illegality was not given in evidence by the defendants. A good deal was said about the want of honour and conscience in the defendants, and it would seem without much reason. The defendant and his co-obligors were -as much bound to indemnify the bank by paying the money for which this suit is brought, as Caldwell was to pay his bet to them; and they are defending themselves precisely as he recovered, i. e., on the illegality of the transaction. I have said the rule stated in Scott v. Swan could not avail the plaintiffs: by showing the bond of the defendants, they show by the condition that the whole arose from a bet on the election of governor of this State. This is in express violation of a positive law, which says: “All wagering or betting on the event of any election held under the constitution or laws of the United States, or the constitution and laws of this Commonwealth, are hereby prohibited; and all contracts or promises founded thereon are declared to be utterly null and void.” Now, this contract is in terms founded on a bet on the election of governor in this State: and the plaintiff, in order to give effect to such illegal and void bet, put himself in the place of the losing party, and, against his will and express notice, paid the bet for him, taking the bond in suit for indemnity. Whatever sporting or betting men may think or say about refusing to pay bets, the courts are bound by the laws and by decisions; and we feel no disposition to evade them, more especially in bets on elections. Judgment affirmed.