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III Black. Com. 452.

A wager is not considered as â nudum pactum, or contract without consideration in the law of England. The mutual promise is a consideration. In case of a certain event taking place, I will pay you 10 on condition that if it does not take place you will pay me £10. It is a species of gambling though it does not come under the usual denomination of it. There may be said to be a quid pro quo, risk against risk. But gain to one at the expence of loss to another, is not in the nature of a moral contract, where some certain benefit is contemplated on both sides. Alterius incommodo suum augere commodum, magis est contra naturam quam mors, quam paupertas, quam dolor.

It is strange therefore that it should still remain a contract known to the law, and that an action is maintainable in a court of justice, upon a wager. It is still more so, that it should receive so much the countenance of the law, as to be the mode of declaring on a feigned issue, where the court of chancery directs a matter of fact or law to the common law courts, with a view to an equity case depending, and a decree to be made. This mode of declaring has been introduced in Pennsylvania; and is the form of stating the case where a matter of fact or law is sent to the common pleas by the orphans court, in like manner as from the chancery in England, where the opinion of the common law judges is to be taken on a question of law, or where a matter of fact is to be ascertained by jury. In either case this might be easily avoided, by simply stating the law point to be decided, or the matter of fact to be tried. The reason given in England, for admitting this form of declaring is to avoid the prolixity and expence of special pleading. That does not hold here, where there is neither prolixity nor expence arising from the pleadings; all being put in brief. This needs no act of assembly, but simply that the court in the last resort, giving it to be understood that such form of declaring may be dispensed with, and a statement according to the truth of the case admitted. For a court in the last resort, such as we

have in Pennsylvania, the supreme court, has a greater latitude, and is less embarassed in altering a matter of practice; or a rule of law as to form of action, than either the court of common pleas, king's bench, or exchequer in England. For a writ of error lies from the king's bench to the common pleas, and from the law side of the exchequer, a writ of error lies into the court of exchequer chamber before the lord chancellor, lord treasurer, and the judges of the court of king's bench, and common pleas, and from thence it lies to the house of peers. This et sequentia, see 3 Black. 410. It must be a matter of less difficulty therefore here to alter, or change rules, than in that country from the constitution of their courts, and the expence attending appeals. For this reason it ought to appear absurd in our supreme court, to hear the judges declaring as in the common pleas, 1 Taunton, 542. "The cases have decided," says Mansfield, "(for what reason, I cannot perceive) that a count for goods sold and delivered, is not an action upon a contract." And Chambre, justice, "I am very sorry we are bound to conform to such a rule, but the cases are all so."

It is on this principle that so far as my voice could go, I have declared more than once against declaring on a feigned issue in such a way, not only because I think that it may be better done or at least more conformably to common understanding, to state the point of law on which an opinion is required, or a matter, the issue in fact of which is to be determined by a jury; but for this reason also that it will avoid the giving countenance to the principle of a wager, by adopting the form in a judicial proceeding.

A wager, however, is restrained by the common law to what is lawful. It must be unlawful for a person to wager that he will transgress a penal statute. This comes under the head of malum prohibitum; but still more it must be unlawful to wager that he will commit a battery, for this is malum in se, and a breach of the peace, contra bonos mores, or what is against good morals must be unlawful, as the ground of a wager that the wagerer will strip himself, and shew himself naked from a balcony, or other place.

But the common law will still farther restrict the subject of a wager. What must affect the reputation or the feelings of a third person, is unlawful. What will lead to an indecent investigation, will not be sustained by a court, as with regard to the sex of an individual. On a wager against public policy, also, no action can be maintained.

There is a species of wagering which, I take it, the common law would hold unlawful, so that an action could not be maintained; such as upon a man's own speed or strength, or that of others; or such uncommon exertions, as must be unprofitable or pernicious. Even in the case of animals, races against time, or carrying or drawing against each other, or against weight, is a species of cruelty, and cannot but be considered wantonness, and an abuse of useful powers; so that in these cases also, wagering ought to be held unlawful, and no action to recover ought to lie.

Wagering has been excluded from the law of insurance by statute in England. "The practice of insuring ideal risks under the names of interest or no interest, nor without farther proof of interest than the policy, or without benefit of salvage to the underwriters, was increasing to an alarming degree, and by such rapid strides as to threaten the speedy annihilation of that lucrative and most beneficial branch of trade. All these various kinds of insurance just enumerated, (and many others, which the ingenuity of bad men found no difficulty in devising) having no reference whatever to actual trade or commerce, were very justly considered as mere gaining and wager-policies: and therefore the legislature thought it necessary to give them an effectual check, and, by positive rules, to fix and ascertain what property or interest a merchant should be permitted to insure." Park.

348.

All wagering on the event of an election ought to be considered as unlawful in a republican government; where it is essential to the exercise of the privilege and the choice of representatives, that the voter be confined to considerations of policy in the selection, and be swayed by no motive of pecuniary profit or advantage. It leads to undue exertions

also, where a stake is depending further than the public good, and is introductive of unusual heat, and sometimes breaches of the peace. No action ought to lie in these cases. Where there is a deposit in the hand of a stake-holder, it ought not to be recovered of him by the party succeeding. But query, whether it would not be for the public good, that by an act of the legislature all such wagering should be swept away by making it a misdemeanor, and an indictable offence to bet, and deposit, or take the mutual promise of parties to such contract. The freedom of unbiassed suffrage is of great moment, and great sums at risk by monied men on the event of an election, cannot but do mischief. The wealthy bet because they can afford to lose, and the bulk are led to place confidence in the stake, as a pledge that in their judgment such a candidate will be successful. It is an art of canvassing that prevails much, and misleads the weaker judgment.

Extract of a letter from Joseph Reed, recorder of the city of Philadelphia.

PHILADELPHIA, Oct. 5, 1813.

"I HAVE been much pleased with the perusal of a few sheets of your intended publication, by Byrne. As a didactic work, I think it well calculated for the use of the student, and will, I hope, in time, promote a complete revision of the code of Pennsylvania law. On a perusal of the sheets, I am inclined to think there are some few errors in point of fact, which I beg leave candidly and respectfully to suggest to you -In page 19 of the introduction, you have observed, that the quakers do not admit a practitioner of the law to be in full communion. This, I am informed, is not the case, there are several instances in this city of gentlemen of the profession being in full communion with the friends. Mr. John Hallowell, I know is, and values his privilege as a member of the meeting, very highly.-Before the western insurrection, I might have named several others, viz. Messrs. Rawle,

Morgan, &c.-Mr. John Tod, the former husband of Mrs. Madison, remained in full communion with the friends, until his death in 1793.-In page 38 of the Law Miscellanies, you have stated that a legislative provision is necessary "to en"able the children of a devisee to take among themselves "what the devisee himself would have taken."-This was done by the act of the 19th March, 1810, which has probably escaped your notice, or perhaps your observation was made before the passing of the law.

"I have thus, sir, taken the liberty of stating what has occurred to me on a perusal of a part of your work; if I am right, I know you will thank me for the information, and if I am wrong, you will I am sure appreciate my motive, and excuse the liberty I have taken."

The title of this publication, a miscellany, will naturally admit, or rather call for a greater liberty of insertion than otherwise could be tolerated; but, independent of this, there would be a perfect propriety in admitting any thing that would serve to correct what had been said or hinted at. I therefore did not think I could do better than give the extract from the preceding. I shall be disposed to do the same in any case where I may be honoured with the notice of what has been written.

As to the act, 19th March, 1810, I believe what I had written was before it passed; and I overlooked it in correcting the original note. But this act of 19th March, 1810, does not come up to all that I had in view; and was in my mind in the observation made upon a reference to 1 Bin. 546. That was the case of the representatives of a brother and sister devisees, which is not provided for even yet under that act, as it would not seem to extend to the case of collateral relations, but is confined to lineal descendants, and respects the dying before the testator; and does not provide for the case

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