Sec 449

At common law a contract on a wager, by which A. agrees to pay money to B. conditioned on a certain fact transpiring, in consideration of B. paying money to A. conditioned on the same fact not transpiring, is valid, provided the fact which is the subject of the wager be not one which it is against the policy of the law either to have investigated or to have made dependent upon such influences as a wager would be likely to put in motion.1 The courts have, therefore, refused to sustain wagers whether an unmarried woman had a child;2 whether a person is of a particular sex;3 whether a certain person has committed adultery;4 and whether certain property, which was to be pledged as security for the debt. The agreement by the defendants was fully executed, and the services rendered were performed in good faith. To refuse them redress, under the circumstances, for the reason stated, would, it seems to us, be applying the doctrine which denies a remedy for the enforcement of contracts contrary to public policy, to a state of facts not justly falling within the operation of the rule. The services they performed were distinctive in their character and perfectly lawful; and, had the transaction been executed throughout in the mode contemplated by the parties as respects the form of the security to be taken, it would, in fact and legal effect, have been but a loan secured by what in equity would have been regarded as a mortgage only, and the investment, without doubt, have been as much the subject of taxation, under the statute relating to that subject, as if a mortgage pure and simple had been taken. Where the transaction, within the understanding of the parties, is a loan of money upon security, no form which the transaction may assume can so disguise it as to change its legal character or effect."

Wagers on matters which ought not to be investigated are illegal.

1 In Hampden v. Walsh, L. R. 1 Q. B. D. 192, a wager is defined to be "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." This is defective as excluding cases where the wager is based on an existing fact not yet ascertained. That a wager is not at common law unlawful, see Leake, 2d ed. 748; Benj. on Sales, 3d Am. ed. sec 542; Good v. Elliott, 2 T. R. 693; Hussey v. Crickett, 3 Camp. 168; Cousins v. Nantes, 3 Taunt. 515; Hampden v. Walsh, ut supra; Grant v. Hamilton, 3 McL. 100; Bunn v. Riker, 4 Johns. 426; Haskett v. Wooten, 1 Nott & McC. 180; Dunman v. Strother,.

1 Tex. 89. That an agreement is none the less a wager because the wagering element is put in the shape of a conditional sale of goods or contract for wages, see Higginson v. Simpson, L. R.

2 C. P. D. 76.

2 Ditchburn v. Goldsmith, 4 Camp. 152.

3 Da Costa v. Jones, Cowp. 729.

4 See Atherfold v. Beard, 2 T. R. 610; Hartley v. Rice, 10 East, 22.

domestic relations existed which could not be explored without giving great personal pain or public scandal.1