Edgell v. M'Laughlin, 6 Whart. 176

Edgell v. M'Laughlin

6 Whart. 176 | Pa. | 1841

Tire opinion of the Court was delivered by

Sergeant, J.

Courts of justice are instituted to determine the disputes among men, necessarily arising from their existence together in society. The time and labour of a large class of its citizens are devoted to the adjustment of these disputes at a great expense to the community; and this class is as necessary to the welfare of society, as the existence of any of the occupations in which men do *179for others what they cannot do for themselves. But in the innumerable contentions that human affairs originate, there is. sufficient to engross the time and labour of its tribunals, without occupying them in the investigation of gratuitous contests, such as wagers; which flow sometimes from a spirit of gambling, sometimes from.heat of passion, and sometimes from folly and indiscretion on the one side, and stratagem and cunning on the other. Hence the more intelligent judges of modern times have revolted at examples of this sort of suit, which, have been sustained in a court of justice; such as that in 5 Burrow, 2802, of two sons wagering on the lives of their fathers; and other judges have undertaken to refuse tó try such suits, on the ground that the wager was impertinent or frivolous, and have turned the plaintiffs out of court. In many other instances v nice and ingenious distinctions have been sought to get round the general principle, and to defeat the plaintiff’s recovery, till the exceptions are now so many that it requires some effort of mind to fancy a wager which might be free from the exceptions to the rule, considering the strong feeling which leads modern courts to struggle against this sort of action. See Selw. Nisi Prius, 1086, chap, on Wagers.

Fortunately, however, for us in Pennsylvania, there is no decision in its highest tribunals, that a wager is recoverable; and the only authority that exists on the subject is expressly in point to the contrary. In Pritchett v. Ins. Co. N. America, (3 Yeates, 458,) it was held, in the year 1803, that a policy of insurance in which the insured had no interest, was a wagering 'policy, and as such was void. It was at the same time admitted, that the stat. 19 Geo. II., prohibiting these policies in England, did not extend to this state; nor could it by the settled rules as to the construction of English statutes enacted prior to the Revolution. On no other ground could the case have been so held than the common law of Pennsylvania, by which wagers were considered contrary to its genius and policy, and not recoverable by action in a court of law. “ Every species of gaming contracts,” says Mr. Justice Yeates, delivering the opinion of the court, “ wherein the insured having no interest, or a colourable one merely, or having a small interest much overvalued, in a policy, under the cloak of insurances, is reprobated by our law and .usage.”

The next case and the only other in which the point was contested in this eourt, is the case of Phillips v. Ives, (1 Rawle, 458,) in which the defendant bet that within two years Napoleon Bonaparte would escape or be removed from the island of St. Helena; and if he died within the two years, the defendant would lose the bet. Napoleon died within the two years. Yet it was decided by a majority of this court, that the bet was not recoverable, it being held that no bet of any kind about any human being, is recoverable in a court of justice. This case certainly went a great way towards recognising the doctrine, that no bet or wager could be recovered; *180but it was not necessary then to go so far. Mr. Justice PIustok, however, expresses his opinion very plainly, that though bets were recoverable by the common law of England, it was not a part of the common law introduced into Pennsylvania by William Penn or his successors, nor recognized in the act of assembly passed in 1777, which is our guide on that subject. And I fully concur with him, that it is not. ' When I look back to the character and principles which actuated our founders and predecessors, I am satisfied they never countenanced such a principle, but left parties who chose to embark into contracts of this kind, to recover as they could, according to the code of honour under which they originated; and that it is derogatory to the character and injurious to the interests of the community, to sanction them, and to employ their legal tribunals in investigations, often indecent, often inflammatory, often impertinent and frivolous, and always useless, if not noxious in their effects on society.

Where a wager is but a fiction of law, invented for the trial of a right, it has nothing in common with a wager in which there is no right in question between the parties. Of course, the above remarks do not apply to the form often adopted under a feigned issue, as the most convenient mode of settling precisely the fact averred on one side and denied on the other.

We concur, therefore, with the court below, that this action-cannot be sustained.

Judgment affirmed,