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1812.

GILBERT

against SYKES.

were present at the time, to invalidate the serious acceptance of it on the part of the defendant, if he had continued to act under the original impression upon himself and the company present; but he seemed to have considered himself as bound in honour, against that impression, to persevere in the bet; not being willing to accept the option of cancelling it, as a favour, which had been offered to him by the plaintiff. The jury however, under all the circumstances of the case, negatived the bet by finding a verdict for the defendant, on the ground that it was not a serious engagement at the time. And to set aside this verdict as against evidence a motion was made, and a rule nisi granted, in the last term; in the discussion of which the principal question was ultimately resolved into the legality of such a wager as this. For this purpose the only other material facts necessary to be stated are that at the time of the wager made, Bonaparte, then first consul of the French republic, was at peace with this country, though he shortly after became, and was at the time of the action brought, an open enemy of the king's; and that the bet arose out of a conversation concerning the probability of his assassination or other violent death.

Topping, Scarlett, and Hullock, shewed cause against the rule, and upon the matter of law argued, first, that the action would not lie, because the plaintiff had no particular interest in Bonaparte's life, and therefore not within the stat. 34 Geo. 3. c. 48., considering it in effect as an insurance on the life. They cited Atherford v. Beard (a), though they admitted that Da Costa v. Jones (b) went to establish that a wager upon an indifferent subject, with

(a) 2 Term Rep. 610.

(6) Coup. 729.

out

1812.

GILBERT against SYKES.

out interest, was allowed by law. Secondly, that the wager was in effect a contract for an annuity on Bonaparte's life ; and that since the annuity act, 17 Geo. 3. c. 26. no such contract could be created without writing memorialized. Upon this head it was further argued, that at common law an annuity could not be granted but by deed, as not lying in livery; and cited 2 Blac. Com. 317. which classes annuities amongst incorporeal hereditaments; and other books, as Co. Lit. 172. a. 144. b. 145. a. Thirdly, that no contract which was not to be executed within a year, as this was not, could be enforced without writing, by the 4th section of the statute of frauds; and they cited Fenton v. Emblers (a), Peter v. Compton (b), and Boydell v. Drummond (c). Fourthly, that the wager was void on the ground of impolicy, as giving an interest to a subject (the plaintiff in this instance) in the life of a foreign sovereign who might be and had actually become an enemy: and that at all events it could not be enforced during the war. And they cited Gamba v. Le Mesurier (d). Fifthly, that it was void on the ground of immorality, as tending to encourage assassination. Upon the two last grounds they noticed Andrews v. Herne (e), and Lord March v. Pigot (s), which were referred to upon moving for the rule. As to the first of these, which was a promise to pay 201. if Charles Stewart should be king of England within six months, they denied that it was law, as well because of its obvious impolicy, as upon the rejection of its authority by Buller, J. in Good v. Elliott (8). And as to March v. Pigot, it was an indecent wager between two heirs upon the lives of their

(a) 3 Burr. 1278.
(d) 4 East, 407.
(f) 5 Burr, 2802

(6) Skin. 353. (c) 11 East, 142.
(e) i Lev. 33. 1 Keb.56. and 65.
(8) 3 Term Rep. 697.

fathers;

1812.

fathers; but at least it contained nothing of a public nature. They further cited La Caussade v. White (a), Houssen v. Hancock (6), Allen v. Herne (c), Atherford v. Beard (d), Shirley v. Sankey (e), and Hartley v. Price ().

GILBERT against SYKES.

Garrow, Park, Littledale, and Brougham opposed the rule. As to the first ground of objection to the wager, that the parties had no particular interest in the subjectmatter but what they created to themselves by their own contract, however better it might have been if the Courts had originally refused to take cognizance of idle wagers, yet there were so many instances in which they had been sustained, that it was now too late to reject them merely on the ground of the parties' want of a particular interest in the subject-matter. And Mr. Justice Buller stood alone in Atherford v. Beard, and in Good v. Elliott, in considering that such a wager was within the operation of the stat. 14 Geo. 3. To the second objection they answered that this was not an annuity either in form or substance : no such contract was in the contemplation of either of the parties. To warrant the denomination of it as an annuity, the parties must at least have contemplated its duration for a year, and not from day to day only as this was, though it might last for years. No writ of annuity would have laid for it. The annuities mentioned in the old books relate only to real property. Then to bring it within the annuity act (17 Geo. 3. c. 26.) there must be a grant in writing to secure it, without which none of the regulations of the act are applicable to it. [Lord Ellenborough, C. J. told the plaintiff's counsel that they

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1812.

GILBERT against SYKES,

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might relieve themselves from arguing this point; for the
annuity act certainly related to written securities.] Nei-
ther was the case within the stat. 14 Geo. 3. Thirdly,
this is not within the 4th clause of the statute of frauds,
as a contract not to be executed within a year, like that
in Boydell v. Drummond (a), which necessarily contem-
plated a duration of several years, and which could not
consistently with the terms held out to the subscribers be
executed within a year. But here one of the parties at
least must have contemplated that it would be executed
within 100 days, otherwise he was certain of being a
loser. And Fenton v. Emblers (b) rather supports the
construction that this clause of the statute only relates to
contracts which are expressly to be performed beyond
the year. [Lord Ellenborough, C. J. said that they might
relieve themselves from this part also of the argument.]
Fourthly, it is not immoral, as giving an interest to one
of the parties to procure the death of a third person by
violent means. No such motive can fairly and lawfully
be imputed to any person; nor is that the natural and
obvious tendency of the contract. It is not to be pre-
sumed that any person, having an interest of this sort in
an event, will endeavour to accomplish it by all means
however wicked and detestable. Nothing is more com-
mon in the grants of leases, especially of ecclesiastical
leases, than to limit their duration to the lives of the
king and royal family and other eminent persons, the
notoriety of which precludes all doubt. The objection,
if well founded, would go to invalidate all leases for
lives. They relied on Lord March v. Pigot (c). Neither
fifthly, is it against public policy to allow of such a

(a) 11 East, 142.

(6) 3 Burr, 1978.

(c) 5 Burr. 2802.

wager,

1812.

GILBERT against SYKES.

wager, as well for the unreasonableness of the presumption, that an interest of this kind would engage any person to swerve from their allegiance and duty, at the most imminent hazard to the party, as also because a wager on the life of a foreign sovereign appears to be more free from any objection of the kind than upon any other life whatever, from the event being far more removed from the control of either of the parties than in any other supposeable case. They relied on Andrews v. Herne (a), where, though the objection on the ground of public policy does not appear by the reports to have been taken; yet it cannot be supposed that the consideration of it was wholly overlooked by the Court. [Lord Ellenborough, C. J. There is nothing to be imputed to the Judges in Andrews v. Herne, that the objection in this view of it did not occur to them; for down to much later times, Lord Mansfield had tried causes upon bets on the sex of the Chevalier D'Eon, before the objection was taken on the ground of immorality. There are however precedents in Herne of declarations upon wagers so far back as the time of Elizabeth upon subjects in which the parties had no particular interest. Andrews v. Herne may therefore be taken as an authority that an action on a wager may be entertained without the parties having a special interest in the subjectmatter, but not as an authority against the objection now taken on the ground of public policy. It cannot indeed be considered that any person, by means of an interest created in the duration of another's life, would be impelled to commit murder in this country, from the fear of the law if from no other fear; but against the murder of a person in a foreign country, there might not be the

(a) I Lev. 33. 1 Keb. 56. 65.

same

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