PART I.
At Common Law.
At Common Law wager-contracts were neither illegal nor void; technically, they could, like any other legal contract, be enforced by an action at law. The only obstacle in the way of obtaining this remedy was that the Courts, grudging the amount of time consumed in adjudicating upon what were often exceedingly frivolous wagers, when other more important causes were waiting for trial, took upon themselves to postpone all actions of this kind until the rest of the business had been disposed of; or, in the language of Lord Ellenborough in Gilbert v. Sykes,[[1]] “until the Courts had nothing better to do.” At the same time there were certain kinds of wagers which could not be enforced, as being of a mischievous, immoral tendency, or contrary to the policy of the law. Among such were:—
Wagers illegal at Common Law.
(1.) A wager which would give either party an interest in interfering with the course of justice—e.g., a wager on the conviction or acquittal of a man charged with forgery.[[2]] On the other hand, in Jones v. Randall,[[3]] it was held that there was nothing illegal in a wager as to the result of an appeal from the Court of Chancery to the House of Lords, it not being in the power of the parties to influence the judgment of the House, but secus if the bet had been made with a noble lord or a judge.[[4]]
(2.) Where the ascertainment of the fact or the event would involve inquiries respecting the age or sex of third persons or tend to make them objects of public curiosity. Thus in Da Costa v. Jones[[5]] a wager as to the sex of a third party was held to be illegal. In Ditchburn v. Goldsmith[[6]] a wager that a certain woman would be delivered of a male child before a certain date was held illegal on the ground that neither party had any interest in the question; and this in spite of the fact that the woman had herself challenged inquiry on the subject.
In Eltham v. Kingsman[[7]] two parties were proprietors of certain carriages called “Fly by nights,” which they let to hire at Cheltenham; the plaintiff laid a wager that a certain person would go in his “Fly by night” to the assembly room that evening. The Court were inclined to think this would be illegal as tending “to subject a third party to great inconvenience by exposing him to the importunities of the proprietors of these vehicles; any person who has walked through Piccadilly must be sensible that this is no small inconvenience.”
Where question concerned parties themselves.
The law, however, was different where the question related to a matter affecting either or both of the parties to the wager.
In Hussey v. Crickett[[8]] the plaintiff and defendant were dining one evening with seven other gentlemen at Furnival’s Inn Hall. The two entered into a wager of a “Rump and dozen” as to which was the elder. Each appointed one gentleman to name a day on which the registers of baptism should be produced, and to order a dinner for the “Rump and dozen.” The two gentlemen named appointed a day and ordered a dinner at the Albion in Aldersgate Street, which was paid for by one of them, but the money was repaid him by the plaintiff. Plaintiff won the bet, but the defendant refused to attend the dinner. Plaintiff sued to recover the amount he had paid.