GILBERT, CLERK, versus SYKES, BART.

COURT OF KING'S BENCH, MONDAY, JUNE 8.

THIS rule nisi, for a new trial, came on to be argued. It will be recollected that the action was brought at York, for the arrears of a wager, laid on the 29th of May, 1802, and paid till the 25th of December, 1804,-that in consideration of one hundred guineas, the defendant would pay the plaintiff one guinea per day as long as Bonaparte should live. The Jury found for the defendant.

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Mr. Topping for the defendant, Sir Mark Masterman Sykes, said, that the question was, whether this was, in the understanding of the parties, a serious bargain. It might be said, if it was not, how came the defendant to receive the one hundred guineas? The defendant conceived himself bound by his hasty offer, in honour, if not in law and that no action at law might be brought for the payment of the wager, he had offered to refer the matter of honour to any two neighbours of the parties, whom they should severally name. But this Rev. Clergyman, the plaintiff, Rector of a Living of 14001. a year, whose will, and not whose poverty, must therefore have suggested this action, admitted to the hospitality of his neighbour's table, took advantage of his openness of language, in saying, in the course of conversation about Bonaparte ten years ago, when the chances of his assassination were a good deal discussed, that he would venture, for one hundred guineas, to pay a guinea a day during Bonaparte's life; and refused, after having been paid 9711. 5s. to submit to the VOL. XL.-No. 237.

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arbitration proposed by the defendant, or to accept five hundred pounds as a compromise; but proposed to refer the het to a tribunal with which the Divine seemed more familiar, the Jockey Club. In the language of this society, he shewed himself an adept, at the time the defendant made his hasty proposition; for he immediately exclaimed, Done, done," although the universal feeling of the company was, that it was " no bet," expressed by them in words to that effect, and by Sir Mark's counte-, nance of indignation and disappointment. The plaintiff, however, now sought for the payment of the wager up till the time of bringing the action, viz. for 2,2961. 7s. a sum to which the verdict of a special Jury had decided that he was not entitled; and as they had to determine upon contradictory evidence, of which they were the proper judges, the learned Counsel submitted, that the Court would not grant a new trial, unless they could see clearly in point of law, that this was a valid engagement; and he contended, that the defendant was not estopped by the payments which he had made to the plaintiff, from discussing the legality of the original bargain. Was this a contract for an annuity, or an insurance upon the life of Bonaparte? He submitted that it was an insurance of his life; and /unless the plaintiff had an interest in that life, it was void by the statate 14 Geo. III. c. 48. which prohibited all other insurances. What interest had the plaintiff in the life of Bonaparte, except what was created by the contract? This contract was made during the interval of peace; but it could not be enforced while the nations were at

Atherfield v, Beard, 2 T. R. 610. in which a wager respecting the future amount of any branch of the public revenues was held illegal, because it leads to an improper discussion, and is contrary to sound policy; and Mr. Justice Buller did not find that it had ever been established as a position of law, that a wager between two persons, not interested in the subject matter, was legal. "If it were necessary to have recourse to it," he added, "I incline to think with the opinion of this Court, (in Foster v. Thackeray, 1 T. R. 57.) and that of the Common Pleas, that the statute of 14 Geo. III, would reach the present case; for though it speaks only of policies, yet I think it may extend to cases like the present; and that the Court, pursuing the spirit of the act, must extend it to all cases, since a policy is nothing but a promise; and it would be a strange thing to determine, that the party might do the same thing in one form, which the statute has expressly prohibited to be done in another." What was an insurance, but an engagement to secure to a party the payment of a sum of money, in consideration of a premium? and, to effect this, a policy was not always necessary, though the act uses the term. The object of the statute was to prevent gambling; and as Mr. Justice Buller had stated a policy to be only a promise, this was a promise by parole.

Lord Ellenborough questioned, whether the statute did not relate only to insurances effected by a written instrument; and Mr. Justice Bayley said, that the authority of Mr. Justice Buller had been a little impeached by the case of Good v. Elliott, 3 T. R. 693.

Lord Ellenborough said, that

the question, whether an action was maintainable on such a wager, was a most important one. Lord Mansfield had refused to try a wager upon the sex of the Chevalier D'Eon, (Dacosta v. Jones, Cowper, 729); Lord Longhborough, respecting the laws of hazard, (Brown v. Leeson, 2 H. Blackstone, 43); and Lord Ellenborough himself, upon a point of legal practice, (Henkin v. Gerss, 2 Campbell, 408). Sir J. Mansfield, C. J. also, in the late case of Hussey v. Crickett, (3 Campbell, 168) which was a wager of a rump and dozen, which party was the elder, inclined to think he ought not to have tried the cause. The precariousness of Bonaparte's life was doubtless the inducement to the wager; but the bet was only in the terms of an annuity. If it had been, whether the subject of it would be assassinated, it would have involved an interest in one party to assassinate him.

Mr. Topping proceeded to impli cate the plaintiff in the preservation of Bonaparte's life; and asked how, if he were to appear on our coast, at the head of an invading army, the plaintiff would receive him? Doubtless with open arms. It would be his interest to protect him; and the Reverend Gentleman was, doubtless, sincere when he prayed for his enemies.

Mr. Scarlett followed on the same side; and submitted, that if Sir Mark had rejected the plaintiff's money at the time, he would, doubtless, have been protected from this catching bargain, as well by the Court, as by the company present. His words amounted only to

strong way of expressing his opinion of the precariousness of Bonaparte's life; but as the plaintiff affected to make a favour of letting

him off, Sir Mark refused to accept of any favour at his own table and under a false notion of honour, accepted the premium, and continued to pay the het for nearly three years. He could now, therefore, incur no great blame, if, under better advice, he should resist this imposition from proceeding any further. The evidence was left to the Jury, whether the defendant's payments treated this contract as a legal wager; and the Jury must be supposed to have found, that the defendant chose rather to pay the money for a time, than to incur the imputation, that he had thrown out a thing which he never intended to say. It was also in evidence, that in the year 1805, the offer of 500l. had been made.

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Lord Ellenborough.-Don't that cut the other way? The Court can have no disposition to conntenance such a wager as this. The payment of the annuity, and the offer of 500l. to compound it, shew a recognition of a deliberate act. But you had better apply yourself to the question, whether, in point of law, this wager is good.

Mr. Scarlett merely meant to shew, that the Jury had it evidence, that for nearly six years no demand had been made upon the defendant on account of this wager; and that the matter was proposed to be referred to the Jockey Club. They might have made it a question whether the plaintiff did not think he had received a sufficient consideration to induce him to renounce his claim; or whether the defendant's impression had not been, that it was so referred, and the Jockey Club had decided with him. Upon the law of the subject, Mr. Scarlett put the argument in another point of view, and submitted, that if this

were not an insurance, it was an annuity, and assumed more of that form than an insurance, from the difficulty of saying which money was the premium, and which the annuity. Now there could be no annuity without writing; and such a contract as the present was void by the statute of frauds, 29 Car. 2. c. 3. sec 4. which provides, that no action shall be brought upon an agreement, which is not to be performed within one year, from the making of it, unless it shall be in writing, and signed by the party to be charged therewith.

Mr. Park, contra, quoted the case of Beydell v. Drummond, in which the agreement was necessa rily extended beyond the year.

Mr. Scarlett said, that it still began to be performed within the year.

Mr. Justice Le Blanc.-This agreement might have ended within the year.

Mr. Scarlett submitted, that if the parties contemplated to bind themselves beyond the year, the agreement must be in writing. The question was, whether the words to be performed, meant to be consummated, or to be begun. The parties here contemplated the time as long as Bonaparte should live. The distinction was taken in the case of Fenton v. Emblers, 3. Burrow, 1278, which was a parole contract, in consideration that the plaintiff should become the housekeeper of the testator, that the testator should bequeath her by will an annuity of 161. which he did not do, and the action was brought against his executor; to which it was objected for the defendant, that, by the statute of frauds, this agreement, as it was not performed within a year, ought to have been reduced into writing,

Mr.

Mr. Justice Denison said," the statute plainly meant an agreement not to be performed within the space of a year, and expressly and specifically so agreed. A contingency is not within it, nor any case that depends upon contingency. It does not extend to cases where the thing only may be performed within the year; and the act cannot be extended further than the words of it. Peter v. Comp. ton (Skinner 353), proves the distinction of a contingency as I have stated it, as fully and clearly as possible. It was an action upon the case upon agreement, in which the defendant promised for one guinea to give the plaintiff'so many at the day of his marriage. The question was, if such agreement ought to be in writing; for the marriage did not happen within a year. The Chief Justice (Holt), before whom it was tried, advised with all the Judges, and by the greater opinion (for there was a diversity, and his own was è contra), where the agreement is to be performed upon a contingent, and it does not appear within the agreement, that it is to be performed after the year, there a note in writing is not necessary, for a contingent might happen within the year; but where it appears by the whole tenour of the agreement, that it is to be performed after the year, there a note is necessary; otherwise not." The agreement before the Court was therefore only good for a year. It appeared, also, by the Annuity Act, that it did not enter into the conception of the Legislature, that an annuity could be created without writing; and if an annuity could created by parole, all the objects of that act would be frustrated: the Legisla ture, in the framing of the Annuity

Act, thought the statute of frauds had rendered that impossible. There was another point under which, in the present circumstances, the plaintiff could not recover. This contract was made during the time of peace, but was sought to be performed in time of war; and it had been decided, that a contract could not be enforced during war, if the interest went to protect enemy's property. This was an implied term in the policy, (Gamble v. Le Mesurier), though the insurance was valid when made, yet the event of war, which happened, de feated it. If this were good policy in a state as to enemy's property, surely the principle extended to the enemy's life; the insurance of enemy's property gave the party an interest to caution the enemy, and to give them information of the position of our cruizers. The argument was exactly the same as to the present case. If there were any project on foot, which affected the life of Bonaparte, the plaintiff had an interest to inform him of that circumstance, and to caution him to avoid the danger. Mr. Scarlett must contend, that the break, ing out of war put an entire end to the insurance; for if it revived with peace, the interest would be the same ; and he therefore went the length of saying, that such a contract, affecting a person who might become our enemy, was void.

Lord Ellenborough said, that the most arguable inconvenience, in the present,case, was the interest it held out in favour of the abo minable doctrine of assassination; and his Lordship desired it might be more fully argued as to the law of wagers in general, in which he should be inclined to consider the doctrine of the Civilians as part of the law, and refused to take cog

nizance

nizance of sponsiones ludicræ altogether. In all cases in which the Court of Chancery had directed issues, as to wagers, there was a real interest in the party.

The case of Andrews v. Herne, 1. Levinz. 33. was adverted to as the first on this subject, where a wager was laid, that Chas. Stuart would be King of England within twelve months then next following, he being then in exile, which was beld good.

Mr. Justice Bayley said, that the wager arose out of a conversation upon the probabilities of Bonaparte's assassination; and the contemplation was, that he would come to his end by violent means. This was in evidence, though not upon record.

In the case of Fenbrass v. Brett, 2. Vernon, 70, the Court of Chancery granted an injunction to stay proceedings at law, for forcibly taking from the defendant money which he had won from the plaintiff at play, though in his answer he denied all the circumstances of fraud, charged in the Bill: and the Chancellor cited the case of Sir C. Bishop v. Sir T. Staples, which came before Lord C. J. Hale, in K. B. upon a wager won at a horse-race, when Hale, C. J. said he would give defendant leave to imparl from time to time.

WEDNESDAY, JUNE 10. The argument in this important cause was resumed, and Mr. Hullock was heard against the rule for a new trial. He contended, 1st, That the wager was an annuity, for if the first count in the declaration were reduced to writing, it would run that the defendant in consideration of one hundred guineas promised to pay the plaintiff

one guinea per day, or three hundred and sixty-five guineas per annum, so long as Bonaparte should live. Although such an annuity as this did not require registration, as not being in writing, yet it was void as being created by parole. 2dly. That the contract was void by the Statute of Frauds, the agreement not being to be performed within the year, and therefore requiring to be in writing; and 3dly, That it was void, as exciting an immoral and impolitic interest in both parties; and that the interest of the party making the bet, to preserve the life of Bonaparte, was no less to be condemned than the interest of the party accepting it, in his assassination. The learned Counsel cited the authorities to which we have before referred: and the bearing of Mr. Garrow, and the rest of the Counsel, contra, in support of the rule, was postponed till to-morrow.

THURSDAY, JUNE 11.

Mr. Garrow contended, that it was not necessary that this contract should last for a year, and, that therefore, it was not an annuity. To constitute an annuity there must be a grant capable of registration. The contract was not within the statute of frauds; that in the case of Boydell v. Drummond, (11 East, 142.) the contract was not to be completed for ten or twelve years. Here the intelligence of the next foreign mail might have put an end to the wager. He quoted the language of Lord Kenyon in Good v. Elliot: "I entirely agree with what was said by Lord Mansfield in Da Costa v. Jones, that wagers have gone to an extent which is much to be complained of; and if we were sitting

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