The mere fact that an agreement was a wager did not make it unenforceable or opposed to public policy according to the English common law.17 Statutes, however, restricted various forms of betting, and apart from such statutes wagers were held against public policy as matter of common law if the subject-matter of the bet was deemed to be obnoxious to the public welfare.18 In many of the cases to this effect the court displayed considerable ingenuity in finding a reason to invalidate a wagering contract on account of its subject-matter.19 By v. Daviess County Ac. Assoc., 12 Ind. App. 542; People t;. Fallon, 152 N. Y. 12, 46 N. E. 296, 37 L. R. A. 227, 57 Am. St. Rep. 492; Harris v. White, 81 N. Y. 532; Porter v. Day, 71 Wis. 296, 37 N. W. 259; Gates v. Tinning, 5 U. C. Q. B. 540. But see Bronson Agricultural etc. Assoc, v. Ramsdell, 24 Mich. 441; Comly v. Hillegass, 94 Pa. 132, 39 Am. Rep. 774.
15 Harris v. White, 81 N. Y. 532; Dudley v. Flushing Jockey Club, 14 N. Y. Misc. 58, 35 N. Y. S. 245; State v. De Boy, 117 N. C. 702, 23 S. E. 167. See also West v. Carter, 129 HI. 249, 21 N. E. 782.
16 See Jenks v. Turpin, 13 Q. B. D. 505; Trimble v. Hill, 5 A. C. 342.
17 In Jones v. Randall, 1 Cowp. 37, Lord Mansfield allowed the winner of a wager to recover, and in Hampden v. Walsh, 1 Q. B. D. 189, Cockburn, C. J., said:
"It is well established by numerous authorities, which it would be here superfluous to cite, that at common law, a wager, being a contract by A to pay money to B on the happening of a given event, in consideration of B paying money to him on the event not happening, was legal, provided the subject-matter of the wager was one upon which a contract could lawfully be entered on."
18 DaCosta v. Jones, 2 Cowp. 729; Atherfold v. Beard, 2 T. R. 610; El-tham v. Kingsman, 1 B. & Aid. 683; Gilbert v. Sykes, 16 East, 150.
19 In Thackoorseydass v. Dhondmull, 6 Moore's P. C. 300, 310, Lord Campbell said: "I regret to say that we are bound to consider the common law of England to be, that an action may be maintained on a wager, although the parties had no previous interest in the question on which it is laid, if it be not against the interests or feelings of third persons, and does not lead to indecent evidence, and is not contrary to public policy. I look statute, however, in 1845,20 a wager was made unenforceable, and since that time, no recovery can be had on such a contract. It is looked upon, however, as merely unenforceable as distinguished from positively unlawful, a distinction which leads to certain consequences where a wagering agreement is only collaterally involved. Thus negotiable paper given in payment of a wager is not illegal, but merely lacks sufficient consideration.21 So if a person lost a wager and requested another to pay it, he was liable to repay the sum,22 until 1892 when a further statute prohibited recovery in such a case.23