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1812.

GILBERT against SYKES.

same salutary check. The objection however in this case, if well founded, stands upon a much broader basis. For can there be any thing more impolitic, as tending to produce the retaliation of an enemy against the persons of those who are most dear to us at home, than that the assassination of persons invested with the government of foreign countries should in any degree be encouraged, or any temptation held out for such a purpose, if this wager be made out to have such a tendency. I do not measure this upon the practical probability of the event, but on its tendency ; in the same manner as Lord Mansfield in Jones v. Randall (a) puts by way of illustration the case of a wager laid with a peer of parliament upon the event of a cause there pending, tending to influence his decision, and therefore void ; and yet there could be no probability of such an event.] They still denied that the tendency of such a wager as this was either immoral or impolitic : and mentioned another case of Forster v. Thackeray, M. 22 Geo. 3. (b), which was never finally decided : and observed that France being at peace with this country when the bet was made, the question was the same as if it had been made upon the life of any person here: and if legal then, the subsequent war could not illegalize the contract, nor could any objection of this sort be taken on the general issue.

Lord ELLENBOROUGH, C. J. Upon conferring with my brethren, I find that though we differ in some respects upon the grounds of our opinion, yet we all agree that there should be no new trial granted in this case. Wherever the tolerating of any species of contraet has a

(a) Cowp. 37.

(6) IT. R. 57. in notis.

tendency

1812

GILBERT against SYKES.

tendency to produce a public mischief or inconvenience, such a contract has been held to be void. In addition to the several cases which have been alluded to in the argument, one more may be mentioned, where a contract on account of its mischievous tendency was held void ; that was a case (a) where a note had been given for a certain sum to indemnify parish officers for the maintenance of a bastard child; and because of the interest which it created in them to be negligent of their trust, and not to take care of the life of the infant committed to their charge, the security was held void. This had been first decided before me, and similar questions afterwards arose before my Brothers Heath and Lawrence, and they each of them held the same opinion. It is therefore no new principle in the law, that if a contract have a tendency to a mischievous and pernicious consequence, it is void. I am aware, that in old cases, precedents of which are to be found in Herne's Pleader, actions have been maintained upon wagers open to an objection of this sort, but not decided upon that ground, which was not then adverted to. The first of these reported is Andrews v. Herne, where the bet was upon the life of one who was held to be King de jure; and yet no point was made as to the invalidity of the contract on the ground of its impolicy. The question, whether any suit could be maintained upon a wagering contract where the interests of third persons were involved in the discussion, came under consideration in Cox v. Phillips (b), before Lord Hardwicke; in which the validity of Mrs. Constantia Phillips' marriage with Mr. Muilman was drawn into discussion. The attempt to draw into question the in

(a) 6 East, 110. Cole v. Gower.

(0) Rep, temp. Hardw. 237.

terest

1812.

GILBERT against SYKES.

terest of third persons was severely animadverted upon by Lord Hardwicke. The case in which the general question was most considered was Dacosta v. Jones, upon the sex of the person who passed under the name of the Chevalier D'Eon: but that was brought several times before the Court before any objection was taken upon the ground of its immoral tendency. Questions of the same sort had several times arisen before, but they had not undergone full discussion and consideration. Jones v. Randall was upon a wager whether a decree of the Court of Chancery would be reversed upon appeal in the House of Lords; and as that was between parties having no interest whatever in the decision, it was considered merely as an innocent wager; but Lord Mansfield then said, that if it had been with one of the judges or lords of parliament, it would have been clearly void on account of its mischievous tendency ; and yet the danger of influencing such illustrious persons, who would not probably mix at all in the decision, would be infinitely remote : but notwithstanding the improbability of any mischief in fact, such a wager was deemed void on account of its tendency upon general rules of law. Then is not the interest created by this wager likely to induce more proximately mischievous consequences to the public than the other instances which have been considered as having that tendency. The mischief is the more to be regarded at a time when it has been announced by that enemy, in the preservation of whose life the plaintiff has thus created an interest to himself, year after year, that there is a large force collecting on the opposite coasts ready to be poured into this kingdom, and every Sunday the minds of the subjects are kept alive to the danger : and shall it be allowed to a subject to say that in case of such an

event

1812.

GILBERT against SYKES.

event happening, as an invasion of the kingdom by the French ruler, that the loss of 365 guineas a-year depending upon that life, would have no operation upon his mind when opposed to the call of active duty towards his country: that the moral duties which bind man to man are in no hazard of being neglected when put in competition with individual interest: that it is not an object to us to prevent even the suspicion, and to repel from us the malignant imputation that we countenance in any manner the idea of assassinating an enemy, and thereby guard against any attempt on his part to retaliate upon a life most dear to us all. Wagers of this description have a tendency to encourage these notions, I cannot therefore consider them altogether innoxious. The wager in question arose out of a conversation respecting the probability of Bonaparte's assassination; and these parties were not acting upon any remote speculation when one of them thought that the mischief which was to destroy his life would happen within a hundred days from that time. If the wager in its terms had been upon the probability of a person's assassination within that period, I should not have considered such a question as proper to be tried in the form of a wager which went to give any person an interest in the perpetration of so enormous an offence'; and it matters little that this consideration was only an inducement to the bet more in the form of an annuity: the very computation of the price of such an annuity, little more than three months' purchase, shews that they contemplated a violent termination of the life. Upon the whole therefore, not without some degree of doubt whether Mr. Justice Buller was not right in saying that no wagers ought to be sustained where the parties have no special interest in the subject-matter; at any rate

where

1812.

GILBERT against SYKES.

where the subject-matter of the wager has a tendency injurious to the interests of mankind, I have no doubt in saying that it ought not to be sustained. I cannot indeed say that this verdict was founded on a ground upon which it could be sustained, that the bet was not deliberately entered into, for whatever doubt there was upon it at first, it was abundantly confirmed afterwards : but I think that an action should not be countenanced upon a subject in which the parties had not only no interest other than what they created to themselves by the bet, but the public have an interest to restrain it. Therefore founding my opinion upon all the circumstances in evidence in this case, I consider it as a wager against public policy and of immoral tendency, and that no new trial should be granted.

GROSE, J. I agree that there should be no new trial, but am not prepared to say that the action will not lie in this case : but it is enough if there be any mischief in the trial of such a question against granting a new trial. Now the subject of the bet is a matter of mere speculation on the life of an individual in which the parties had no special interest : there has been one trial upon it, and the jury have found a verdict against it; and I think that the time of a court of justice has been wasted enough already upon such a subject. I do not now enter upon the question whether the action lies : I have upon a former occasion fully considered it, and I then thought that the action would lie, and am not now prepared to say that it does not : but I do not think it necessary upon this occasion to enter into it: for if the discussion of it once has tended to public mischief, it will be more mischievous to agitate it again.

Le

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