Comly v. Hillegass

• Decision Date: 31 March 1880
• Citation: 94 Pa. 132
• Parties: Comly <I>versus</I> Hillegass.
• Court: Pennsylvania Supreme Court

94 Pa. 132

Comly versus Hillegass.

Supreme Court of Pennsylvania.

March 23, 1880.

March 31, 1880.

March 23d 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Montgomery county: Of January Term 1879. No. 235.

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Geo. W. Rogers and J. P. Hale Jenkins, for plaintiff in error. —The rule upon which the learned judge rested his decision has no application here. It is not included in the case stated. The simple question is whether the defendant, who agreed to pay for the privilege of exhibiting his horse at an agricultural fair, is bound to make good his part of the contract. It was not a contract to participate in a gambling transaction but only an exhibition.

B. M. Boyer and L. M. Childs, for defendant in error.—The contract was a wager under the Acts of April 22d 1794, Purd. Dig. 728, pl. 8, and of February 17th 1820, Purd. Dig. 759, pl. 3, and the check given in its performance was void. This court, in Unger v. Boas, 1 Harris 600, ruled that where a note had been given for chips to be used in playing at faro, it was void under the statute against gaming. In that case there was no play and no money lost before the note was given, and the arrangement was in fact two contracts; but this court ruled these to be, in law, but one, and void in toto. It is urged by the plaintiff, that defendant's horse not having trotted at the race, the money was not lost or laid on the trotting, &c., of horses, and that it is, therefore, collectible. But the contract was one by which each party hazarded money on the event of a contemplated horse race; it was a contract void at its inception, and all checks, &c., given to secure the money were also void; and no subsequent act or failure to act could give to either any validity.

The judgment of the Supreme court was entered, March 31st 1880, PER CURIAM.

It is very evident that the check given by the defendant to pay the entrance fee to enable him to enter his horse at the exhibition was for an illegal purpose. The object is stated to have been to entitle him to have his horse entered to compete for the premiums offered by the society for trials of speed. In plain English there was to be a horse race — which beyond all question is in violation of the laws of this Commonwealth. It is directly within the principle of Unger v. Boaz, 1 Harris 601....