Edgell v. McLaughlin

• Decision Date: 25 January 1841
• Citation: 6 Whart. 176,36 Am.Dec. 214
• Parties: EDGELL v. M'LAUGHLIN.
• Court: Pennsylvania Supreme Court

6 Whart. 176

36 Am.Dec. 214

EDGELL v. M'LAUGHLIN.

Supreme Court of Pennsylvania.

January 25, 1841

IN ERROR.

1. An action cannot be maintained in Pennsylvania to recover a sum of money alleged to have been lost by the defendant to the plaintiff upon a wager or bet.

2. And in an action against the drawer of a check upon a bank evidence is admissible on the part of the defendant, to prove that the check was drawn in pursuance of an agreement, by which a sum of money was bet by the defendant with the plaintiff upon a certain event; and such consideration having been proved, the defendant is entitled to a verdict.

ERROR to the District Court for the City and County of Philadelphia.

In the Court below K. F. Edgell brought an action on the case against Daniel M'Laughlin, upon a check drawn by the defendant upon the Philadelphia Bank, dated Philadelphia July 29th, 1836, in favour of S. Comfort or bearer for $500. Plea, non-assumpsit, & c. DP On the trial before STROUD, J., on the 28th of February, 1838, the plaintiff's counsel gave the check in evidence, and proved a demand upon the bank and a refusal to pay by the direction of the defendant.

The defendant's counsel then offered in evidence the following paper.

" The undersigned having made a wager concerning a certain note in writing, or letter, said to have been written by Daniel M'Laughlin to George C. Baker, they put into the hands of Stephen Comfort, each a check of this date for the sum of five hundred dollars, which the said Stephen is to deliver to K. F. Edgell on the first day of August, 1836, if the said K F. Edgell will deliver to the said Stephen any letter or note in the handwriting of Daniel M'Laughlin, party hereto requesting the said George C. Baker to pay any larger sum than the hundred dollars, which he lately borrowed of the said Daniel; but in case the said K. F. Edgell, party hereto, fail to produce and deliver said note, with such request as aforesaid in the said writing to the said Stephen, on the first day of August, and in that case the said Stephen is to deliver both the said checks to the said Daniel for the said Daniel's use.

(Signed) D. M'LAUGHLIN,

K. F. EDGELL."

The plaintiff's counsel objected to this paper; but it was admitted by the Court, and exception taken.

The plaintiff's counsel then gave in evidence a letter from the defendant to George C. Baker, dated the 8th of July, 1838, requesting him to repay the sum of $115.

The learned judge charged the jury, as follows:--

" I shall place this case before the jury, upon a plain ground. I construe the paper produced to be a wager. It is a frivolous, idle, and trifling wager, and it is not becoming courts of justice to have such cases tried before them. Such was the law in England before the Revolution; and though there have been some decisions since, which might tend to establish a different conclusion, yet there has been exhibited a constant desire upon the parts of courts there, to restrain suits upon such subjects. (The learned judge here gave some instances, and proceeded.) And our own Supreme Court has, I have been informed, recently decided, that a bet upon a boat-race cannot be recovered. My opinion therefore is, that the paper discloses an illegal wager, and that therefore the plaintiff cannot recover, though he may have performed the matters assigned to him, and produced the paper specified. It is a wager and nothing else; and there is nothing appearing in it which can be construed to be a consideration, upon which the promise to pay can be supported. Under this view of the case, the jury will find for the defendant."

The jury accordingly found for the defendant; and this writ of error was taken.

The plaintiff in error assigned for error the admission of the evidence excepted to, and the charge of the Court.

Mr. Kennedy for the plaintiff in error.

1. The evidence of a wager ought not to have been admitted. In Swan v. Scott, (11 Serg. & Rawle, 155,) it is said that the test whether a demand connected with an illegal transaction, can be enforced at law, is, whether the plaintiff requires the aid of the illegal transaction to establish his case. Here there were services performed in respect to the letter which were a sufficient consideration, independent of the bet. Toler v. Armstrong, (4 Wash. C. C. Rep. 299.)

2. The learned judge of the District Court went too far in saying, that this was an illegal wager. In Phillips v. Ives, (1 Rawle, 36,) C. J. GIBSON expressed the opinion that the legislature alone could prohibit a recovery on all wagers. This is not a case involving moral turpitude. If there is any good consideration here, we are entitled to recover.

Mr. M'Laughlin, contra.

Mr. St. Geo. T. Campbell, in reply.

Wagers are recoverable in general. Da Costa v. Jones, (2 Cowp. 735.) Jones v. Randall, ( Id. 37.) The exceptions to the rule are, 1st. Where a wager tends to a breach of the peace. 2d. Where it is against morality. Brown v. Leeson, (2 Hen Bl. 43.) 3d. Where it tends to indecent exposures. 4th. Where it is injurious to third persons. Good v. Elliott, (3 Term Rep. 693.) 5th. Where it is against the policy of the government. Atherfold v. Beard, (2 Term Rep. 610.) Gilbert v. Sykes, (16 East, 150.) If the judge thought the action wrong, he onght to have refused to try the case, as C. J. ABBOTT did...