“Although at common law many wagers were legal,” remarked the English gentleman alluded to aforetime, “still, in England, as the law now stands, all wagers are null and void at law,[151] and if the loser either cannot or won’t pay, the law will not assist the winner;[152] but either party may recover the stake deposited by him, before it is paid over to the winner by the holder. That point was settled in the case of a genius who bet all the philosophers, divines, and scientific professors in the United Kingdom, £500, that they could not prove the rotundity and revolution of the earth from Scripture, from reason, or from fact, the wager to be won by the taker if he could exhibit to the satisfaction of an intelligent referee a convex railway, canal, or lake.”[153]
“Was the referee satisfied?” asked a bystander.
“Yes; it was proved to his satisfaction that on a canal, in a distance of six miles, there was a curvature to and fro of five feet, more or less. And then the man asked his stake back, and got it, too.”
“In New York,” I said, “it has been held, under a statute giving the losing party a right of action against the stake-holder for the stake, whether the stake has been paid over by the stake-holder or not, and whether the wager be lost or not, that the holder is liable to the loser, although he had paid over the stake by his directions.[154] And in several of the States, if the wager is illegal, the stake-holder is liable to be made refund the stakes, notwithstanding payment to the winner.”[155]
“Such decisions are subversive of all honor and honesty,” said a betting looking character.
“Not so. A bet should be a contract of honor, and no more. One should not bet unless he can trust his opponent. The time of the courts of law should not be taken up by such matters.”
“Are the American courts as hard upon wagers as the English?” asked the Englishman.
“Quite so,” I replied. “In some parts of the country they have been prohibited by statute, and some courts have denied them any validity whatever. In Colorado it was held that the courts had enough to do without devoting their time to the solution of questions arising out of idle bets made on dog and cock-fights, horse-races, the speed of trains, the construction of railroads, the number on a dice, or the character of a card that may be turned up.[156] Even if admitted to be valid in any case, it is quite clear upon the authorities that they cannot be upheld where they refer to the person or property of another, so as to make him infamous or to injure him, or if they are libelous, or indecent, or tend to break the peace.[157] In some States it has been decided that wagers upon the result of elections are against public policy, and therefore void. In California, during the presidential campaign of 1868, a man called Johnson bet that Horatio Seymour would have a majority of votes in that State, while one Freeman bet that U. S. Grant would be the lucky man. Mr. Russell was the stake-holder. After the result of the election was known, Johnson demanded his money back, but Russell honorably paid it over to the winner; so J. turned round and sued for it. The Court held, that if Johnson had repudiated his bet and asked for his money before the election, or before the result was known, he might have got it, but that now he was too late.[158] Judge Sanderson remarked that in times of political excitement persons might be provoked to make wagers which they might regret in their cooler moments. No obstacles, he thought, should be thrown in the way of their repentance, and if they retracted before the bet has been decided, their money ought to be returned; but those who allow their stakes to remain until after the wager has been decided and the result known, are entitled to no such consideration; their tears, if any, are not repentant tears, but such as crocodiles shed over the victims they are about to devour.”[159]
“Ah, then it has been judicially decided that crocodiles weep,” sarcastically observed a bystander.
From talking on wagering, we naturally passed to the subject of gaming—a kindred vice.