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1812.

GILBERT against SYKES.

LE BLANC, J. This is an application to set aside a verdict for the defendant, which was given by the jury upon consideration of all the circumstances attending this bet : but the Court do not think it material to discuss the ground on which that verdict was founded, being of opinion that the plaintiff ought not to recover upon a new trial. It appears from the learned Judge's report that the bet arose out of a conversation respecting the particular situation of the person to whom it refers, • and the probability of his coming to a violent death by assassination; and it is clear that this contract was entered into upon that consideration; and indeed that is shewn by the very terms of it, taking it as an annuity; for it is at little more than three months' purchase. It is said that we ought not to look to the conversation which passed before the contract in order to affect the construction of it; but in all cases where the question is on the legality or illegality of a contract, Courts always look to the previous circumstances which led to it; and therefore I think that the previous conversation was evidence in this case. It has been often lamented that actions upon idle wagers should ever have been entertained in courts of justice: the practice seems to have prevailed before that full consideration of the subject which has been had in modern times; but the frequent discussion of it in these times has so far satisfied the minds of most lawyers, that they are satisfied that objections would have lain in many cases of wagers that have formerly been maintained without noticing such objections; and it is now clearly settled that the subject-matter of a wager must at least be perfectly innocent in itself, and must not tend to immorality or impoliey. Then, can a wager upon the life of a person, whether enemy or Vol. XVI.

M

friend,

1812.

GILBERT against SYKES.

friend, founded on the probability of its terminating by assassination or other violent death, be said to be innocent in itself ? Such a wager does not come within the range of any of those cases where wagers have been sustained. With respect to Andrews v. Herne, which has been relied upon as most like this case, I have no hesitation in saying that the bet would never have been sustained in these days; being a bet between two subjects, whether the sovereign of the country would be restored to his crown, of which he had been forcibly deprived. The other case relied on, of Lord March v. Pigot, arose out of a conversation between two sons, as to which of their respective fathers would live the longest; upon which a third person stepped in and took up the bet with one of the young gentlemen ; but that case was considered chiefly on the doubt, whether or not it was a bubble bet, as one of the fathers happened then to be dead. At any rate it was free from the present objection; for there was no previous conversation whether one or other of the fathers would come to his death by assassination or other violent means. But in my opinion it is both impolitic and immoral to bet concerning the life of a sovereign, whether he shall come to his death by assassination or other violent means.

BAYLEY, J. The discussion which has been had of this case has strongly illustrated the inconvenience of countenancing idle wagers in courts of justice: it occupies the time of the Court, and diverts their attention from causes of real interest and concern to the suitors : and I think it would be a good rule to postpone the trial of every action upon idle wagers till the Court had nothing else to attend to. This is the case of a mere idle

wager,

1812.

GILBERT against SYKES.

wager, in which the parties had no particular concern. It was induced by a conversation, not upon the probability of the person's death within a given time, in the course of nature, but by assassination or other violent means : the amount of the sum given shews that his death by violent means was in the contemplation of the wagering parties ; and that, I think, for the reasons which have been stated, makes the wager both immoral and impolitic. It gives to one person a pecuniary interest in the violent death of another, by whatever means procured; an interest which he has no right to create by his own voluntary act; and this, when applied to the person of a foreign potentate, is also particularly impolitic; because it tends to create disgust against this country amongst foreign potentates to have such subjects discussed in our courts of law. And if this were allowable in one instance, a very considerable interest might be created by the same means in great numbers of persons in this country in prejudice to its true interests in case of an invasion.

Rule discharged.

Tilby against Best.

Tuesday,

June 16th. THIS \HIS came on upon a rule for setting aside an execu- 1f judgment

be entered up tion against the defendant, and for discharging him for the penalty out of custody for irregularity; which execution had of a bond given been taken out upon a judgment for the penalty of a annuity, and bond, entered up under a warrant of attorney given to be taken in ex.

ecution there

on, when the warrant of attorney under which such judgment was entered up only authorized the taking out execution for the arrears, the Court will set aside the execution in toto, and not merely charge the defendant pro tanto.

secure

M2

1812.

TILBY against BEST.

secure an annuity. The objections urged by Marryat against the execution were two: first, that the plaintiff had taken his judgment for the penalty at common law, without suggesting breaches upon the statute of William (a); and supposing a release of errors (which had been given in this case) would release the error of not reviving by scire facias the judgment, which was otherwise out of date; yet parties could not enter into an agreement to rescind an act of parliament: but if the defendant could release his right of objection under the statute of William, he might equally release all right of objection under the annuity act, and thus the object of the legislature would be defeated. Here it was a term in the original contract and annuity deed, though not in the warrant of attorney, that the grant of the annuity should release all errors.

Topping and Best, on shewing cause, referred to Henderson v. Lady Glencairn (6), and Osterbury v. Morgan(c), and Howell v. Stratton (d), where the judgment was on a mutuatus. But this objection was answered by observing that there could be no irregularity in the commitment, or error on the record by the commitment in execution merely following the judgment.

Marryat then objected that the plaintiff had not pursued the authority given him by the warrant of attorney, which was only to take out execution for the arrears of the annuity, and not for the penalty.

Lord ELLENBOROUGH, C. J. The last objection is very strong; if the plaintiff had merely taken out exe(a) 8 & 9 W. 3. c. 11.

(6) 2 Taun. 235. (c) 2 Taunt, 195.

(d) 2 Smith, 65.

cution

1812.

TILBY against Best.

cution as for the arrears, though for too much, we
might have aided him, by referring to the Master to see
how much was due, and detaining the defendant charged
in execution only for that sum: but here the execution
having issued alio intuitu for the penalty, which is without
any foundation in the special authority, and in no respect
in pursuance of it, we think that the defendant is entitled
to have his rule made absolute.
Per Curiam,

Rule absolute.

EDWARD Herbert's Case.

Monday, June 15th.

A PPLICATION was made on the

part of a seaman Agrotection

for a rule to shew cause why a writ of habeas cor- press service, pus should not issue to bring him for the

up

granted by the

of purpose

favour of the his being discharged, as having been illegally impressed. board of admiThe application was founded on an affidavit of Thomas for a certain

time, may be Herbert, stating that on the 31st of December last he was set aside at master of the ship Nantwich of London, of 152 tons, and pleasure whenobtained from the board of admiralty an instrument called judgment the

exigency of the a ship’s protection of that date, for three months, for public service which 10s. was paid; enjoining all commanders, &c. of the and it matters king's ships not to press 12 men and boys belonging to not that the

impress warthe Nantwich, provided their names, ages, and descrip- rant is of a prior tions were inserted on the other side of the protection, protection. and provided they were actually on board, or in the immediate service of the vessel, and that the protection was kept on board of her; and Edward Herbert, as chief mate, was brought in all respects by the affidavit within the terms of the protection. It then stated that he was impressed on the 1st of February following, within the three months, and was still detained.

Park,

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