to the wages earned after the death of the master; they would only be authorised to make an assignment in the manner prescribed by the Act. It is true they might have procured a compensation for the remainder of the term, by an agreement with the intended assignee before their application to the Court; but they have no power whatever over the apprentice, except through the medium of the Court; and as they have not complied with the Act in this respect, or taken any steps with that view, during the period of the indenture they can have no legal pretensions to their present elaim. It was urged, that as the apprentice remained under the contract, he thereby gave his consent to serve the remainder of the term for the administrators; this argument is by no means tenable under the circumstances of the case. In fact he could not have changed his situation, neither did he know of his master's death until his return; and it appears that he elaimed this portion of his wages the first opportunity that was offered to him. The defendant, therefore, having notice of the claim of the apprentice, ought to pay the money to the person who is legally entitled to receive it. Judgment must be entered for the defendants. Judgment for the Defendants. 1812. KENNEDY against SAVAGE: CASES IN THE Court of Common Pleas, OF THE FIRST JUDICIAL DISTRICT. All wagers laid upon the event of an election, are illegal and void. THE SMYTH against M⚫MASTERS. HERE was a special verdict in this case, which found, that a wager had been laid between the plaintiff and defendant on the event of an election for Governor of Pennsylvania; and that it had been won by the plaintiff. It did not appear whether the bet had been made before or after the poll was closed, or whether the parties, or either of them, were voters; the cause therefore depended on the broad question, whether any wager on the event of an election was legal. Purdon, for the defendant, contended that the contract was void, and that the plaintiff could not recover: He was not disposed to deny the right to recover a bet made upon indifferent questions (a), though he could not help noticing (a) Indifferent wagers, upon indifferent matters, without interest to either of the parties, are certainly allowed by the law of this country, in so far as they have not been restrained by particular acts of Parliament; and the restraints imposed in particular cases, support the rule. Lord Mansfield in Da Costa against Jones, 2d Cowp. Rep. 734. Wagers fairly won are recoverable, unless &c. Rush, in Morgan against Richards, Browne's Rep. 173. The law appears to be settled, that some wagers form the proper ground of an action. Van Ness, justice, in Bunn against Riker, 4 John. N. Y. Rep. 434. From the earliest times down to the case of Da Costa against Jones, there appears to have benn no doubt on the subject, (that an action would lay for a wager.) Lord Kenyon C. J. Good against Elliott, 3, T. R. 704. See also, 11 Co. Rep. 87 b. 1 Lev. Rep. 33. Carth. 338. 1 Salk. Rep. 344. 1812. SMYTH a remark made by Van Ness j. in Bunn against Riker (a). "That as often as the question had been raised, there is "scarcely a judge in England, from the time of the case of "Da Costa against Jones, down to the present day, who has M'MASTERS. "not expressed his regret that such was the law (b). Wagers, such as the present, are against the principles of morality and sound policy; first, because they destroy the purity of our elections, by giving colour to bribery. The free, equal and unbiassed exercise of the right of suffrage, cannot be too much the object of every well wisher of our government. But secondly, it involves in it a judicial enquiry into the validity of the election for the present chief magistrate. Will the Court and jury sit here to enquire whether the governor is governor de jure or governor de facto? Suppose this Court and jury should decide that he was only governor de facto, might this not create discontent among the people ? In New York, the point has been decided; in the case of Bunn against Riker (c), which was a wager laid upon the election of the governor of New York, Kent, Chief Justice, and Van Ness and Yates, justices, were of opinion, that the contract was void, being against the principles of sound policy. This principle is confirmed by the Court in the case of Lansing against Lansing (d). Browne, contra, said that it had been admitted as a general principle, that a wager fairly won was recoverable; the plaintiff was therefore entitled to judgment, unless the case before the Court had been shewn to fall within some of the exceptions to the rule. They might be classed under five heads. 1st Such as tend to a breach of the peace. As the case put by Lord Mansfield, in Da Costa against Jones, of a wager that J. S. would not beat such a one, or seduce such a woman. (a) 4 Johnson's N. Y. Rep. 434. (6) Whether it would not have been better policy to have treated all wagers originally as gaming contracts, and so have held them void, is now too le to discuss. Lord Mansfield in Da Costa against Jones, 2 Cowp. Rep. 735. I certainly agree with Lord Mansfield, that wagers have gone to an extent that is much to be complained of. Lord Kenyon C. J. in Good against Elliott, 3 T. R. 704. ibid 454. (c) 4 John. N. Y. Rep. 426. (d) 8 against 1812. SMYTH against Secondly, Such as are contrary to morality. Of this class was Brown against Leeson (a), which was a wager laid on the mode of playing an illegal game; when the cause came M'MASTERS on for trial, Lord Loughborough directed it to be struck out of the paper, as being of a nature highly improper to be the foundation of an action; with a proviso, that it should be restored in case the Court, on argument, should be of a different opinion. The Court refused to restore it. Gould justice, in delivering his opinion, says, "the game of hazard "stands condemned by the law of England; there are many "statutes which make it illegal, and nothing can be more ❝injurious to the morals of the nation, than a public discus"sion of this nature, before an audience, whose curiosity is "whetted, to attend the trial of such questions. Thirdly, Such as tend to introduce indecent evidence. As Da Costa against Jones, which was a wager upon the sex of the Chevalier D'Eon (b). Lord Mansfield, though he admitted, that indecency of evidence is no objection to its being received, where it is necessary to the decision of civil or criminal rights, gave it, as one ground of his opinion against that wager, that the trial of it necessarily tended to the introduction of indecent evidence. Fourthly, Such as affect the feelings or interest of third persons. As the last mentioned case of Da Costa against Jones. Lord Mansfield considers, and very properly too, that it would be monstrous, and a disgrace to judicature, to allow two indifferent people, by laying a wager, to try whether a third person had been a cheat or imposter; and to subpœna his intimate friends and confidential attendants to give evidence that will expose him. Fifthly, Such as are against sound policy. The case of Atherford against Beard (c), was a wager whether the Canterbury collection of the duties upon hops, for the year 1786, would amount to more than the Canterbury collection for the preceeding year; and the wager was declared to be illegal, because it tended to expose to all the (a) 2 H. Black. Rep. 43. (b) 2 Cowp. Rep. 729. world the amount of public revenue, and drew that into discussion in Court, which could be canvassed only in Parliament, which was against the sound policy of the kingdom. Of the same class, also were the cases of Allen against Hearne (a), and Bunu against Riker (b), which were wagers laid between voters, with respect to the event of elections; in the first case the wager was laid before the poll began, and in the last case, before the poll was closed. There is no case to be found in the books, of a wager made at any time, between two persons who are not voters, or between two voters after the poll had closed, (except Lansing against Lansing), which was adjudged to be void. On the contrary, the reasoning in all the cases, which form the different classes above refered to, and with which the Court had, for that reason, been troubled, tended to the establishment of a different doctrine. To begin with the case of Allen against Hearne. The special verdict states the plaintiff and defendant to have been voters, and Lord Mansfield, in delivering his opinion says, "This is a wager in the form of it, by two voters, and the. ❝event is the success of the respective candidates. The suc"cess therefore of either candidate is material; and the mo“ment the wager is laid both parties are fettered.” And Buller, Justice; " If you put the case of a wager between a voter "and another person who is not one, it is a palpable bribe ; "it is a sum of money laid to procure a particular vote, and "that case cannot be distinguished from the present; the "bias is exactly the same; it is a pecuniary compensation." In Bunn against Riker; It is stated that both Graham and Riker (the bettors) were electors, qualified to vote for governor; one had voted, and the other had not. Van Ness, in delivering his opinion says, the parties here are electors, Graham had not voted. He then goes into an argument to shew, that though Graham was at a distance from the place where he ought to have voted, that he might have voted, if he had been so disposed. 1812. SMYTH against M'MASTERS. (a) 1 Term. Rep. 56. (b) John. N. Y. Rep. 426. A 2 |