25 Tex. 586 | Tex. | 1860
This suit was instituted by the appellant against the appellees, upon a promissory note for one thousand and fifty dollars, given by the appellees to one Robert Hale, and transferred by Hale, after maturity, to the appellant. The defendants in the court below pleaded that the note was given for money won at a game called “ten pins.” The evidence fully sustained the plea, and the presiding judge instructed the jury as follows: “If the jury believe from the evidence that the note read in evidence was given for money bet and lost at a game of ten pins, it cannot be collected by law.”
The only question before us arises upon this charge of the court. In obedience to it, the jury found a verdict in favor of the makers of the note, and in favor of Monroe against Hale, by whom the note was endorsed. We have given the subject the most deliberate consideration, and our conclusion is that there is no error in the charge of the court below.
It is true that by the Common Law of England an action could be maintained on a wager, although the parties - had no previous interest in the question on which it was laid. But this proposition was always subject to qualifications. These qualifications were, that an action could not be maintained on a wager, if it was contrary to public policy, or immoral, or in any other respect tended to the detriment of the public; or if it affected the interests, feelings, or character of a third person. It will at once be perceived that these exceptions to the general rule are of a nature to admit of great diversity of opinion as to the circumstances under which the rule itself ought to be upheld. These exceptions; or to speak more correctly, the rule and the exceptions taken together, are founded upon a principle which enables the law to adapt itself to the changing circumstances and conditions of communities and States. And it is perhaps the greatest glory of the common law, that it is, in its truest sense, both conservative and progressive in its tendencies. The exceptions to the general rule
On many subjects the law has never been declared by legislative enactments. It is supposed to rest in reason, and the courts have been left to apply the principle of sound reason to cases as they have arisen. The subject now under consideration, the extent to which actions at law could be maintained on wagers, is one upon which the legislatures of common law States have shown a disposition to follow the lead of the courts, and the decisions of the courts have, as nearly as possible, kept pace with public opinion—sometimes lagging behind, out of too great regard for precedents, and sometimes taking the lead when an extraordinary case would quicken the judicial mind. In the year 1777 the case of DaCosta v. Jones was tried before Lord Mansfield. The case arose about a bet upon the sex of the somewhat celebrated Chevalier D’Eon, a Frenchman, whose career had attracted public attention, and who chose to preserve as much mystery as possible in relation to his sex, which had become a subject of much interest in certain circles in the capitals of London, París," and St. Peters-burg. On the first trial of the cause, the plaintiff obtained a verdict, on the evidence, in three hundred pounds. The trial had proceeded upon the former precedents upon the subject of wagers in the English courts. There was a motion in arrest of judg
One of the earliest English cases on the subject of wagers, of which we have a report, was a case in which a wager was laid that Charles Stuart would be King of England within twelve months then next ensuing. Upon this wager the action was maintained. This case is reported under the name of Andrews v. Herne, in 1 Levinz, and under the name of Walcott v. Tappin in 1 Keb., 56-65. In allusion to this case, justice Buller, in the celebrated case of Good v. Elliott, 3 Term Reports, 693, said: “I presume no one will say that an action could now be maintained on any bet of that kind.”
The English courts, however, still sustained actions upon wagers on the most frivolous matters, notwithstanding the effort of Buller, justice, in the case of Good v. Elliott, to treat all idle wagers as void. At a later day, in the case of Henkin v. Guerss, 2 Camp. 408, Lord Loughborough refused to try an action for a_wager whether a person could be held to bail on a special original for a debt under forty pounds, and the Court of King’s Bench approved what he had done. (12 East., 247.) The case of Brown against Leeson, 2 H. Black., 43, was a wager concerning the manner of playing an illegal game, and the court refused to sustain the action because the inquiry was concerning a prohibited game. But Lord Loughborough said in addition: “This was a mere idle wager, and I have no hesitation in saying that I think a court or
The-ie references will serve to show the fluctuations and the general course of English decisions on the subject before us. Even some of uie later cases in which actions have been sustained in the English courts would seem very clearly to sanction immorality. Thus in the case of Bland v. Collett, 4 Camp. 157, the wager was whether a person with whom the plaintiff had conversed was Lord Kensington. The defendant, before he concluded the bet, ascertained for a certainty that the person was Lord Kingston anil not Lord Kensington; but the wager was held to be good. ..It length in England, the legislature came to the relief of the courts, and by statutes 8th and 9th Victoria, all contracts and agreements, whether by parol or in writing, by way of gambling or wogering, are declared to be null and void; and it is provided that no suit shall be brought or maintained in any court of law or e< < uity, for recovering any sum of money or valuable thing, alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made.
"We are informed by Chancellor Kent, in his commentaries, that wager policies of insurance, without atiy real interests" to support them, are condemned by positive ordinances in France, and in most of the commercial nations of Europe. In Scotland, no wager or gaming contract will support an action. (1 Bell’s Com. 300.)
In the United States, the course of decisions on the subject of Wagers has been very much the same as in England, with a stronger tendency in the later adjudications to treat all idle wagers as utterly void. Thus it has been held that a wager on a subject in which the parties have no pecuniary interest is not a valid con
But it is unnecessary to make further reference to the American decisions. The uniform tendency of the later decisions is to treat all gaming contracts and all wagers as utterly void. We feel ourselves authorized to conform our decisions to the public policy and to the sense of morality which the modern decisions and the modern legislation on the subject of gaming and wagers
1. Because it is contrary to sound public policy that courts of justice should be required to enforce contracts into which there does not enter the element of a good or valuable consideration, in the just sense of these words. What consideration is it for the payment of a thousand dollars that one man shall leap farther than another at three leaps? If A. agrees- with B. that he will pay him a thousand dollars, if a certain horse belongs to C. but if the horse belongs to B. then B. shall pay A. the like sum; where is- the consideration of such a contract? There can be no consideration but the mutual risk to which each party subjects himself. And can it be said to be sound public policy to permit parties to take such risks, upon such trifling and frivolous issues ? We think not.
2. We think that it certainly tends to the detriment of the public, that the time of the courts should be consumed in the investigation of the most idle or frivolous matters, about which the parties who lay the wager have no interest, to the delay of causes of the greatest magnitude perhaps, and certainly to the delay of the ordinary business transactions of life.
Lastly, because a great majority of wagers are immoral in their tendency, in a plain and direct sense; and they all beget a desire,as was said by judge O’Eeall, to possess another’s money or property without an equivalent, and this, if not an immorality in itself, opens the way to vice. It might not attract much attention for this court to render a judgment against a man for a thousand' dollars lost at ten pins, or on the turn of a carel, or on the issue of a fight between two dogs, but if a dozen such judgments should be rendered at every term of this court for the next five years,'
This court has sustained wagers upon horse races upon the idea that they rested upon somewhat different grounds, as respects their policy, from other wagers. It may be too late to question thé wisdom and soundness of those decisions. But we are not disposed to go any further in sustaining actions upon wagers, or to recover money or property won upon any game or wager. The judgment of the District Court is therefore affirmed.
Judgment affirmed.