Phillips v. Ives

The opinion of the court was delivered by

Huston, J.

This was an action brought on a wager, evidenced ?iy a writing in the words following:

“ 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, that Mr. Ives loses the bet.”

(Signed by the parties.)

Bonaparte did die on the island of St. Helena, within the two years, or was dead at the time. The District Court, on a verdict being taken for Phillips, subject to the opinion of the court, gave judgment for the defendant. The case has been well argued, and deserves serious consideration, not from the amount in dispute, but from the principle involved.

Certainly a wager can generally be recovered in England, unless where betting on the particular subject, is prohibited by act of Parliament. When we reflect that no good can result to the community from the practice of betting, that much loss and domestic distress is occasioned by it, no wonder that in that country judges have regretted that it had been ever decided that a bet could be recovered. When our ancestors separated this country from England, it was, on the 28th of January, 1777, enacted, that the common law and such of the statute laws of England as have been in force in this province, shall be in force and binding, until altered, &c. Now, I have always believed, that the restrictive words “ as have heretofore been” are as applicable to the common law as to the statute law. Much of both never was, and is not law here. And I would imitate those judges who decided, that gaming policies of insurance, though good at common law, were void here, as not suitable to the principles or genius of our institutions. In fact, this is a gaming policy; but, as I view this case, there is another principle on which the judgment of the court is right, admitting that some wagers can be recovered; but in this, I do not give the opinion of the court, who think the legislature only can prohibit a recovery in all cases of wagers.

No man or men have any right to occasion trouble or uneasiness to any other man or woman, and no court ought to assist them in so doing, or permit its jurisdiction to be abused for such purpose. It has been decided, that certain wagers, for example, whether a particular person was a man or woman, were not recoverable in a court of justice, because the proof might be indecent, and the investigation distressing to the persons. Although the testimony may not, in all cases, lead to inquiries, or call for proof, which is indecent; and although the investigation may in some possible cases, not occasion distress to the person who is the subject of the bet, yet the very same bet, and the evidence t.o be adduced, may be very distressing to another person about whom the second bet may be made. A man of undoubted wealth, not in debt, and not surety for any person, may feel perfectly indifferent as to an investigation in a court of justice, as to the precise amount of that wealth; but a man in other circumstances, may be much distressed and seriously injured. I may be perfectly indifferent as to a bet on my age, but there are no doubt many persons about whose age it would be impertinent to bet, and who would be much hurt by the investigation. Ordinarily, a man in prison for any cause is enough distressed; shall it be permitted that the question of when he will be liberated, shall be the subject of wagers among idle, or thoughtless, or malicious persons, and shall the courts of justice of the country add to that distress by listening to and collecting others to listen to all that malice or avarice may be able to collect on the subject? I would consider it as a case calling for a general rule, and. say, that, as every bet about the age, or height, or weight, or wealth, or circumstances, or situation of any person, is either malicious or indecent, or impertinent, or indelicate, such bets are illegal, and that no court ought in any case, to sustain a suit on such wager; and this, whether the subject of the bet was man, or woman, or child, married or single, native or foreigner, in this country or abroad.

I can perceive no principle of law or justice, which will require or permit the time of the country and its courts to be wasted to gratify the malice, or the curiosity, or the caprice of the unthinking and impertinent. There are many things which politeness would not mention, and charity would conceal; I would not assist folly or malignity in making them public. I would not as a man, and I will not as a judge—I hold that no bet of any kind, about any human being, is recoverable in a court of justice.

Gibson, C. J.,

delivered the following opinion, in which Smith, J., concurred.

I regret that my opinion is so fixed as to compel me to dissent. It seems to me, that the policy of the law, as already settled, is not a subject for our consideration. Nothing like argument or reason has been adduced at the bar to show that the adjudications of the English courts prior to the American revolution, are not, as regards the point in controversy, binding authority and conclusive on the judgment of this court. If they be disregarded in this instance, I see nothing to prevent us from uprooting the very foundations of the common law. It has not been pretended that this wager would be invalid on any principle of those decisions. The instance most apposite, is the wager respecting the restoration of the King; in which the incitement, if any were supposed, directly tended to implicate at least one of the parties in the guilt of treason, and to involve the country in a civil war. In the case at bar, the mischievous consequences supposed to have been producible were, an enterprise against the island of St. Helena; the rescue of Napoleon; the selection by him of the United States as a place of refuge; the demand of his person by the European powers; the refusal of the American government; and, as a consequence of the whole— war. Surely we ought to look at these matters with a practical eye to their probable results, instead of encouraging a train of idle fancies, by the aid of which there is no circumstance or contingency that may not be made pregnant with danger, and unlawful as the subject of a wager. The catastrophe required the concurrence of so many accidents, as to set the accomplishment of it, at defiance. The most desperate speculator among us would not have dared to attempt what was beyond the combined means of the continental powers; nor would it have produced any consequences to the nation if he had; ;sueh an attempt being perfectly lawful, and producing no responsibility on the part of the government. But it is said, no wager is lawful which creates an interest in the death of another. The preceding remarks are equally applicable to this part of the case; for it is notorious, that it was just as difficult to take away the life of Napoleon, as to set him at liberty. The law does not presume that any one would jeopard his own life for the insignificant consideration of winning a bet. Of this, the case in which the parties agreed to run their fathers against each other, as it was termed, is a signal instance. That case is also an authority in point against another position assumed in the argument, that no one is permitted to gain an interest in the concerns of another, by his own act. It is undoubtedly true, that a wager which prejudices the interest or outrages the feelings of a third person, is illegal; and were there colour to‘suppose that the wager in the case at bar, would have thus operated on the interest or feelings of Napoleon, I would agree that it ought not to be sustained. But although dethroned and a captive, he was at an immeasurable distance from the parties, and beyond their influence or power. It seems to me that questions of this sort, are to be considered in reference to the circumstances and condition of the individual. The interest and feelings of .every inhabitant of Russia and Turkey are doubtless wound up in the present contest between those two countries; and the dismemberment of the latter, would be a consequence quite as likely to be produced by the success of the former, as the catastrophe anticipated from the escape of Napoleon: yet tenderness for the feelings of the Sultan, would scarcely be thought to require the people of the TJnitéd Stales to forego all Speculation as to the event. To come nearer home. Betting on the success of particular candidates at an election, was thought to require a statute to make it unlawful. A wager which would necessarily or even probably disturb the peace of an individual, is not to be encouraged; but it has not, I believe, been understood, that a morbid and overstrained sensibility, which in ordinary cases, does hot exist, is the subject of special protection. It seems to me this wager tended neither to indecent evidénee, nor to disturb the peace of the public, or of an individual; and that it was not, in its design or consequences, contrary to good manners or sound policy. I am therefore of Opinion that the action be sustained.

Judgment affirmed.