Phillips v. Ives

• Citation: 1 Rawle 36
• Parties: PHILLIPS v. IVES.
• Decision Date: 29 December 1828
• Court: Pennsylvania Supreme Court

1 Rawle 36

PHILLIPS v. IVES.

Supreme Court of Pennsylvania.

December 29, 1828

IN ERROR.

No wager concerning any human being, is recoverable in a Court of Justice.

Therefore a wager, whether or not Napoleon Bonaparte, would within a specified time, be removed or escape from the island of St. Helena, was held to be illegal and void.

ERROR to the District Court for the city and county of Philadelphia.

John Phillips, the plaintiff in error, brought this action against Stephen Ives, the defendant in error to recover the amount of a wager, the evidence of which was a written paper in these words:

" May the 14th, 1821. This day Stephen Ives bet one hundred dollars to fifty dollars, with John Phillips, that Napoleon Bonaparte, will, at or before the expiration of two years from the above date, be removed or escape from the island of St Helena. It is understood between the parties, that if Bonaparte should die within the above period of two years, and on the island of St. Helena, Mr. Ives loses the bet.

(Signed,) Stephen Ives.

John Phillips. "

" This bet is made in the presence of

John F. Swift. "

It was proved on the trial, that the defendant acknowledged he had lost the wager, and a verdict was given for the plaintiff subject to the opinion of the court. The opinion of the court was divided on the subject. The President held, that the wager was good and the action sustainable. One of the associate judges was of opinion, that, under no circumstances whatever, could an action be sustained upon a wager; and the other, that in this particular case, an action could not be supported. A majority of the court, therefore, gave judgment for the defendant, and the plaintiff sued out a writ of error.

J. Randall, for the plaintiff in error, contended, that, in Pennsylvania, an action upon a wager, can be sustained, except in cases in which the wager is specially prohibited by act of assembly, or void at common law. The case before the court, he said, depended on authority, and afforded an opportunity to test the value of the principle of stare decisis. The subject has been frequently before the legislature, which, though it has thought proper to forbid wagers of certain descriptions, has left wagers at common law untouched. It is not the province of this court, by judicial legislation, to do that which belongs to another branch of the government. Steele v. Phœ nix Ins. Co. 3 Binn. 313. Weidel v. Roseberry, 13 Serg & Rawle, 180, 181. A wager, the subject matter of which is fair, is so far from being discountenanced by courts of justice, that it is fictitiously adopted as a form of deciding the most important questions. The very substratum of a feigned issue is a supposed wager. Actions upon wagers claim a high antiquity; for, in the earliest books of entries, will be found the forms of declaring upon them. Nor, is the dignity of courts at all affected by being called upon to decide such controversies. An argument like this, is so complimentary to those to whom it is addressed, as to be received with some complacency; but, in the present instance it has no support. It would interfere with the decision of many cases, in which at first, it might not be supposed to apply. What is a voyage to a foreign port but a wager upon the state of the market? Indeed, all the speculative transactions of life are, substantially, wagers. The whole subject of the impolicy of wagers was before the legislature, when, after the decision of Morgan v. Richards, 1 Browne's Rep. 171, and Smith v. M'Master, 2 Browne's Rep. 182, in which their validity was recognized, they passed laws to prohibit betting on elections, horse races, and other species of gaming, and left the general doctrine on the subject, as it stood before. The question then arises, is a wager good at common law? No principle is better established by authority, than, that they are so, when they do not interfere with good morals, or with the provisions or policy of the law. The lawfulness of wagers was recognized as long ago as 44th Elizabeth. In Walcot v. Tappin, 1 Keb. 56, 65, S. C. 1 Lev. 33, the action was upon a promise, that in consideration of twenty shillings, the defendant would give twenty pounds if Charles Stuart should be King of England within a twelvemonth. The King was in exile when the bet was made, which was about six months before his restoration. The defence was put solely on the ground of want of consideration, because the subject of it was, in contemplation of law, King of England at the time of the contract. No objection was taken, either to the legality of wagers generally, or to the particular one in question; and, notwithstanding it was upon a political subject of deep interest to the nation, the plaintiff had judgment. The same objection, want of consideration, and no other, was taken in the case of The Earl of March v. Pigot, 5 Burr. 2802, in which the plaintiff and defendant agreed, at Newmarket, after dinner, to run the life of Sir William Codrington, against that of Mr. Pigot's father. The latter died at two o'clock in the morning of the very day on which the bet was made; but this fact was not known to the parties, and the defence was, that, as the defendant could not possibly win, he ought not to lose. The plaintiff had a verdict; and a rule to show cause why there should not be a new trial, having been granted, it was, after argument, discharged by the unanimous opinion of the court. A wager, whether a decree of the Court of Chancery would be reversed or not, on appeal to the House of Lords, it was determined in Jones v. Randall, Cowp. 37, might be recovered, unless the motive be fraud, or other turpis causa. In Harrison's Digest, Title Gaming, Subdivision Wagers, the cases are brought together, and it will be found, that though the judges have sometimes expressed doubts as to its propriety, yet the validity of wagers, in general, is uniformly treated, established legal doctrine. In New York, it has been fully considered and recognized. Bunn v. Riker, 4 Johns. 436. Campbell v. Richardson, 10 Johns. 406. The validity of wagers, unless they be illegal, immoral, or indecent, has been fully admitted, too, in Pennsylvania, by a judge, whose strict moral sense would have led him to a different result, if he had not considered the law too well settled to be called in question. Morgan v. Richards, 1 Browne's Rep. 171. Smith v. M'Masters, 2 Browne's Rep. 182. The subject matter of the present wager, between two American citizens, was perfectly harmless. It offended against neither law nor morals. It was a mere matter of speculation, interesting, it is true, throughout the civilized world, from the character of the extraordinary person to whom it related, but, in a national point of view, wholly immaterial. It could afect neither the life nor the security of the great state prisoner, had he been alive. Both were effectually protected by the great precautions taken by the British government. But, in fact, when the bet was made, he was actually dead, a fact well known as a matter of history.

P. A. Browne, for the defendant in error.

This case presents a peculiarly fit occasion for this court to determine, whether contracts, which every one admits to be immoral in their nature, and pernicious in their consequences, are good in law. It cannot, it is true, be maintained, that no wager, of any description, is valid, but, it may be contended--

1. That, by the common law of Pennsylvania, no wager is recoverable in which the parties have no other interest in the subject matter, than that which they themselves create by the wager. This position is an answer to the argument derived from the adoption of a fictitious wager, in feigned issues in which there is always a stipulation, that the wager itself shall not be recovered. Even the use of such a form has been regretted by a learned judge of this court. Brack. Law Misc. 211. Among other sources of the common law of Pennsylvania, we are to look to the decisions of the courts of England prior to the revolution, and it may be safely affirmed, that there is no English case, prior to the 4th of July, 1776, in which it has been decided, upon the point being made, that a wager upon an indifferent subject might be recovered. This court is, therefore, entirely unfettered by transatlantic authority; the decisions subsequent to the revolution not being binding. The earliest case is that of The Monopolies, 11 Coke, 84, in 44 th Elizabeth, cited on the other side; in which the question was, whether the Queen's grant of a monopoly for the making and importation of playing cards, was void; and the only part of the case which has any bearing upon the present question, is that in which it is said, that playing cards and dice is not prohibited by the common law. In the case reported under different names, in 1 Keb. 56, 65, and 1 Lev. 3, upon the wager, whether Charles Stuart would be king within a certain period, no point was made, whether a mere idle wager was good, which was taken for granted. It was not noticed either by the counsel or the court. It is, at most, therefore, a mere negative precedent, and no decision. In Danvers v. Thistlethwait, Sid. 394, and St. Leger v. Pope, 4 Mod. 406, 409. 5 Mod. 1, 4, the question was, whether the particular bet was within the statute against gaming. Neither in this, nor in any of the other cases decided before the American Revolution, was the general question ever raised. Since the revolution, the broad question, it is true, has been decided; never, however, without expressions of regret, that the law was, as it was believed to be, and in opposition, too, to the opinions of many distinguished judges. This court then, not being bound down by authority, are at liberty to recur to first...