§ 695. Gaming by itself is lawful by the common law, unless it be accompanied by fraud, and then the fraud invalidates the contract.3 Money fairly lost at gaming, and paid, cannot, therefore, be recovered at law by an action for money had and received.1 But either party to a wager may, before the object of the same be determined, recover the sum which he has deposited.2 Statutes have, however, been passed in England, and in this country, by which gaming is prohibited; and whenever it is forbidden by statute, money lost at gaming can be recovered frqm the party to whom it is paid, provided the case be within the prohibition of the statute.3 But it has been held in England, that money knowingly lent for gaming purposes is not recoverable.4 Again, in view of the disastrous effects of gaming in the production of idleness and dissipation, and waste of property, and the consequent ruin of families, as well as that it is prohibited by statute, courts of equity not only refuse to interfere to enforce contracts of gaming, but lend their aid to suppress them, and a bill in equity will be supported to have any gaming security delivered up and cancelled.5
1 Williamson v. Gihon, 2 Sch. & Lef. 356, 362.
2 Keat v. Allen, 2 Vera. 588; 1 Madd. Ch. Pr. 231; 1 Fonbl. Eq. B. 1, ch. 4, § 11; 1 Eq. Cas. Abr. 90, F. 5; Crawford v. Russell, 62 Barb. 92 (1872).
3 Sherbon v. Colebach, 2 Vent. 175; Thistlewood v. Cracroft, 1 M. & S. 500; Bulling v. Frost, 1 Esp. 235; Bosanquett v. Dashwood, Cas. t. Talb. 41; Rawden v. Shadwell, Ambl. 269; Wilkinson v. L'Eaugier, 2 Younge & Coll. 364; Babcock v. Thompson, 3 Pick. 446.
§ 696. The statute provisions do not generally extend, however, so far as to embrace within them wagers, which are a species of gaming.6 But the law, although it tolerates wagers, holds them in no favor; and wherever any particular wager is either contrary to public policy, or, in any manner, immoral and injurious, or even troublesome and impertinent, it cannot be enforced. The courts have often reprehended these contracts, and seize upon every opportunity and every circumstance to invalidate them. But it is well established at common law, that a wager is a legal contract, which the courts are bound to enforce, although it be in respect to a matter which is trifling, or in which the parties have no interest.7 The famous case in which this bold doctrine was first clearly laid down, arose upon a wager, whether or not a certain person had bought a wagon before a certain day: and it was held to be legal, and the winner was allowed to recover against the loser the amount of the wager. Mr. Justice Buller, nevertheless, dissented from the opinion of the other three judges, and insisted that the court ought to refuse to waste its time in the consideration of such questions.1 The doctrine is now well settled, that wagers upon cruelty. So, also, a wager, as to whether a war will be declared;1 or whether a prisoner will be convicted on a criminal charge;2 or upon the event of an election;3 or that a plaintiff will not marry within six years, - is void.4
1 Cotton v. Thurland, 5 T. R. 405. See Rourke v. Short, 5 El. & B. 904 (1856); Crofton v. Colgan, 10 Irish Com. Law, 133 (1859).
2 Cleveland v. Wolff, 7 Kans. 184 (1871); Eltham v. Kingman, 1 B. & Aid. 683. 3 Ibid.; Thorpe v. Coleman, 1 C. B. 990.
4 M'Kinnell v. Robinson, 3 M. & W. 434. But see, contra, Utica Ins. Co. v. Scott, 19 Johns. 1; Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Utica Ins. Co. v. Cadwell, 3 Wend. 296.
5 1 Story, Eq. Jur. § 303, 304; 1 Fonbl. Eq. B. 1, ch. 4, § 6, and note e; Robinson v. Bland, 2 Burr. 1077; Rawden v. Shadwell, Ambl. 269, and Mr. Blunt's notes; Woodroffe v. Farnham, 2 Vern. 291; Wynne v. Callander, 1 Russ. 293; Portarlington v. Soulby, 3 Myl. & K. 104.
6 A contract for the sale of property intended to be used for the purpose of gaming is not void under the statutes of Indiana. Cummings v. Henry, 10 Ind. 109; Bickel v. Sheets, 24 Ind. 1 (1865).
7 Jones v. Randall, 1 Cowp. 37; Edgell v. M'Laughlin, 6 Whart. 176; Good v. Elliott, 3 T. R. 693; Morgan v. Pebrer, 4 Scott, 230; s. c. 3 Bmg.
N. C. 460; Bunn v. Riker, 4 Johns. 426; Bland v. Collett, 4 Camp. 157. A wager on a subject in which the parties have no interest, is not valid in New Hampshire. Perkins v. Eaton, 3 N. H. 152. See Stetson u.Mass. M. F. Ins. Co., 4 Mass. 330; Ball v. Gilbert, 12 Met. 397, and cases cited; Lewis v. Little-field, 15 Me. 233; Rice v. Gist, 1 Strob. 82; Collamer v. Day, 2 Vt. 144; West v. Holmes, 26 Vt. 530. See Noyes v. Spaulding, 27 Vt. 420 (1855), as to stock-jobbing contracts; also Brua's Appeal, 55 Penn. St. 294 (1867).
1 Good v. Elliott, 3 T. R. 698. In this case, Buller, J., said: " I take it to be agreed by all my brethren, with whom I have the misfortune to differ, that if the wager concern the interest of the public, or impute a crime or disgrace to another person, it is void, and cannot be made the subject of an action. The question then is, whether there be any sound difference between a wager throwing an imputation on another, and a wager which respects his property only; I can find none. But, on the contrary, I go further; for I hold, that though the wager imputes no crime or disgrace to another, and though it do not call in question any pecuniary interest of another; yet, if it concern the person of another, no action can be maintained upon it. And, therefore, I am of opinion that a bet on a lady's age, or whether she has a mole on her face, is void. No third person has a right to make it a subject of discussion in a court of justice, whether she passes herself in the world as being more in the bloom of youth than she really is, or whether what is apparent in her face to every one who sees her is a mole or a wart; and yet these are circumstances which cannot, in a court of law, be stated as an injury; for if a man say that a young woman who passes for twenty-three years of age is thirty-three, or that she has a wart on her face (which is considered as a nasty thing), no action will lie for it. I will put one case more, which, if it do not appear too ludicrous, perhaps may be found to bear upon the present question. Suppose a bet were made whether a young lady squinted with her right eye or her left eye; shall it be the subject of sober inquiry in a court of justice how the organs of her eyes are formed, and which of them it is that looks directly to the object before her? Shall the parties in the action be permitted to say, the inquiry is no injury to her, for everybody sees that she squints, and it makes no difference to her whether it be with one eye or the other? No. The answer is, you, the plaintiff and defendant, have no right by an idle wanton bet to bring her person or even her name in question. The principle of the cases, in which it has been said that a bet respecting a third person is void, is not indifferent matters, without other interest to either party than results from the wager, are legal at common law, unless they because it occasions a temporal loss to that third person, or because it subjects him to punishment, but because the laws of the country are calculated only to try adverse rights, and not to indulge or entertain the impertinent inquiries of others, upon matters in which they are in nowise interested. What is it to the plaintiff or the defendant, whether this woman uought the wagon, or stole it, or whether she has paid for it, or is insolvent and never can pay for it ? If it be permitted to these parties to try whether this woman owes £4 for the wagon to the former owner of it, the necessary consequence is, that any two men may try all the debts, the circumstances, and the solvency of another, which will afford a ready means of making men in trade bankrupts before their time. If it appear on the face of the record that the interest of the public, or of an individual, is materially affected, the proper way of taking advantage of the objection is by demurrer, or by motion in arrest of judgment. Da Costa v. Jones and Atherford v. Beard are express authorities upon this point; and by them it is established that if the action lead to improper inquiries it may be stopped in limine. The case of Atherford v. Beard can be supported on no other grounds; for in that case there was a confession by the defendant that he had lost the wager, and, therefore, it was unnecessary, and indeed it was not attempted, to unravel or examine any accounts respecting the public revenue. But where the inquiry affects the character or interest of an individual, justice can only be done by stopping it at the outset; for if the parties are permitted by their counsel to tell their own story at large in public, it is a very feeble and inadequate mode of protecting the character of the person traduced, for the court to say we cannot receive evidence of what has been stated, or, after the mischief has been done, to say it should not have been done. By the very statement of the case the busy curiosity and the foolish tattle of the world are set in motion; and it is beyond the reach of human jurisprudence afterwards to efface its effects. Let us adhere then to the case of Da Costa v. Jones, and much mischief will be prevented, no inconvenience can arise. The wisdom of that determination convinced the mind of every man who heard or who has read it; and I can find no reason for departing from it in one instance more than in another, in which it is said that the action cannot be maintained. One case in which it is determined that the action will not lie is where the bet affects the interest or the feelings of a third person. I subscribe to both the propositions. The interest or the feelings of a third person may both be involved in this inquiry; but if it affect her interest only, that decides against the plaintiff. And when we speak of the feelings of others, I know of no line to go by, but whether the matter at all concerns the person or transactions of another. Men's feelings are as different as their faces; one man will exult in having made a sharping bargain, when another would blush at the mention of it; but the craft of the one, or the remorse of the other, are not apt to be put to the test by an are in respect to a subject which is libellous, indecent, illegal, and violates public policy, good morals, or the peace of society.1 § 697. A wager, however, on a subject which is illegal,2 or which offends against public policy, is void. Thus, a wager as to the event of a sparring match;3 or a cock-fight;4 or whether a horse can trot eighteen miles within an hour,5 - are illegal; because they tend to create disturbance, and to encourage action on an idle wager between other persons." However difficult it may soem to answer the reasoning of Mr. Justice JBuller, the decision in Good v. Elliott has been adhered to ever since, and is now well established. See cases cited supra, and also Hussey v. Crickitt, 3 Camp. 168; Jones v. Randall, 1 Cowp. 37; Fisher v. Waltham, 4 Q. B. 889; Moon v. Durden, 2 Exch. 22; Ramloll Thackoorseydass v. Soojumnull Dhondmull, 6 Moore, P. C. 300; Doolubdass Pettamberdass v. Ramloll Thackoorseydass, 7 Moore, P. C. 239; 3 Eng. Law & Eq. 39; Grant v. Hamilton, 3 McLean, 100; Ross v. Green, 4 Harrington, 308; Dunman v. Strother, 1 Tex. 89. In the later case of Evans v. Jones, 5 M. & W. 82, one of the learned judges said: " It is too late now to say that no wager can be enforced at law, though I think it would have been better if they had been originally left to the decision of the Jockey Club." See Da Costa v. Jones, 2 Cowp. 729; Ather-fold v. Beard, 2 T. R. 610. By Stat. 8 & 9 Vict. ch. 109, § 18, wagers are now prohibited in England. See Coombes v. Dibble, Law R. 1 Exch. 248 (1866).