Sec 450

A wager, also, will not be sustained when the thing to which the wager relates is one which it is against the policy of the law to have thus acted on. This has been held to be the case with a wager between two voters as to the result of an election, which it is against the policy of the law to have made dependent upon pecuniary gain;2 with a wager, that a person indicted would be convicted on a coming trial;3 with a wager by a party that he would not marry within six months, this being in restraint of marriage;4 with wagers as to the result of illegal games.5

Sec 451

By the act of 8 and 9 Vict. c. 109, s. 18, it is enacted "that all contracts or agreements, whether in parol . By statute or in writing, by way of gaming and wagering shall wagers are be null and void; and that no suit shall be brought illegal or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to have been won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made; provided always that this enactment shall not be deemed to apply to any subscription or contribution or agreement to subscribe or contribute for or toward any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise."6 Under this statute, notes given in payment of money won by wagering are held not to be illegal in their inception, but simply null and void so far as concerns their consideration, and consequently may be sued on by bona fide holders.1 It has been also held, under the statute, that if money won by wagering be paid to an agent of the winner, the agent must pay it over.2 Nor does the statute, so it has been held, preclude a person from recovering his deposit, on repudiating the wager, before the money has been actually paid over.3

And so of wagers as to matters which it is against the policy of the law to have thus acted upon.

1 Eltham v. Kingsman, 1 B. & Al. 684; Shirley v. Sankey, 2 Bos. & P. 130.

2 Allen v. Hearn, 1 T. R. 56; At-wood v. Weeden, 12 R. I. 293; Ball v. Gilbert, 12 Met. 397; Bunn v. Riker, 4 Johns. 426; Rust v. Gott, 9 Cow. 169; Brush v. Keeler, 5 Wend. 250; Wagonseller v. Snyder, 7 Watts, 343; Machir v. Moore, 2 Grat. 257; Foreman v. Hendwick, 10 Ala. 316; see.

Thomas v. Cronise, 16 Ohio, 54; but see Shaw v. Gardner, 30 Iowa, 111. As to the right to recover back money deposited by mistake with stakeholder; infra, sec 454, 729.

3 Evans v. Jones, 5 M. & W. 77.

4 Hartly v. Rice, 10 East, 22.

5 Egerton v. Furseman, 1 C. & P. 613; Kennedy v. Gad, 3 C. & P. 376.

6 Leake, 2d ed. 750.

Sec 452

The tendency in the United States has been to hold that the English statutes prohibiting wagers are simply expressive of the common law, and that all contracts, of which the consideration is a wager, are in themselves invalid. It was ruled, for instance, at an early period in Pennsylvania, that although the statute of 19 Geo. II. c. 37, was not in force in that state, yet its principle was virtually accepted as part of the law.4 And the general tendency in this country is to hold that wagering contracts, in a matter in which the parties have no business interest, are in any shape illegal.5 Money staked on In this country tendency is to hold all wagers illegal.

1 Fitch v. Jones, 5 E. & B. 238.

2 Johnson v. Lansley, 12 C. B. 468.

3 Leake, 2d ed. 750; Varney v. Hickman, 5 C. B. 271; Hampden v. Walsh, L. R. 1 Q. B. D. 189; see supra, sec 354; infra, sec 452, 729. As to the construction of the proviso, see Batty v. Marriott, 5 C. B. 818, overruled in Diggle v. Higgs, L. R. 2 Ex. D. 422; Batsonr. Newman, L. R. 1 C. P. D. 573; Coombes v. Dibble, L. R. 1 Ex. 248. As to American statutes, see Edgell v. McLaughlin, 6 Whart. 176; Sutphin v. Crozer, 1 Vroom, 257. As to construction of statute generally, see Moon 0. Durden, 2 Ex. 22; Higginson v. Simpson, L. R. 2 C. P. D. 76. In Ramloll Thackoor-seydass v. Soojumnull Dhondmull, 6 Moo. P. C. 310, where it was held that in India, to which the act of 8 & 9 Vict, does not apply, a wager on the price of opium at the next government sale is not illegal, Lord Campbell sard: "I regret to say that we are bound to consider the common law of England to be that an action can 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 with concern and almost shame on the subterfuges and contrivances and evasions to which the judges in England long resorted in struggling against this rule." But as Mr. Pollock (3d ed. 290) well remarks, "it may surely be thought at least doubtful whether decisions so produced and so reflected upon can in our own time be entitled to any regard at all.".

4 Pritchett v. Ins. Co., 3 Yeates, 458.

5 Lewis v. Littlefield, 15 Me. 233; Perkins v. Eaton, 3 N. H. 152; Colla-mer v. Day, 2 Vt. 144; Ball v. Gilbert, 12 Met. 399; Sampson v. Shaw, 101 Mass. 150; Edgell v. Laughlin, 6 Whart. 176; Phillips* v. Ives, 1 Rawle, 36; Lloyd v. Leisenring, 7 Watts, 294; Fahnestock v. Clark, 24 Penn. St. 501 (a wager to try the right of a public a horserace can, in Pennsylvania, be recovered by the loser from either the winner or a stakeholder.1 ' In Vermont and Massachusetts, where the money is demanded of the stakeholder before it is paid over, it can be recovered, or it can be recovered from the winner if the money has been received by him.2 In New York there can be a recovery from the stakeholder even after he has paid over to the winner.3 A distinction, also, under the statute, is to be taken between a premium on speed and betting on stakes; the former of which may be legal and the latter illegal.4 "Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity."5 It is otherwise with racing for a purse or premium, which "is ordinarily some valuable thing, offered by a person for the doing of something by others, into the strife of which he does not enter."6.