1812. SMYTH against The decisions of the supreme Court of New-York have në binding effect upon this Court. The opinion of judge Van Ness is respectable, as the opinion of a gentleman learned in M'MASTERS. the law; but, as such, is of no further authority than it has law and reason to support it, and may be combatted by other opinions, equally respectable. It is not necessary to go out of the case itself, to find such an opinion. Spencer, Justice, takes a comprehensive view of the whole case, he admits the principle laid down in the case of Allen against Hearne to be sound, but distinguishes the case of Bunn against Riker from that case. "Riker (he says) had already voted ;" and as to Graham, he very properly observes the verdict of the “jury has settled that point; it was a matter of fact peculi❝arly within their cognizance, whether Graham could vote "at the election; by finding for the plaintiff below they have "virtually passed on that fact, and decided that he could not." Our case is, if possible, stronger; it is a special verdict, and no fact is to be presumed, which does not appear on the face of it; it cannot therefore be presumed that either of the parties to the wager were volers, or that the bet was made before the poll was closed; and without presuming one of other of those facts, the law is clearly with the plaintiff. That one of the parties, must have been a voter, and that the wager was laid before the poll was closed;-that it is not incumbent on the Plaintiff to shew that they were not voters, or that the poll was closed; but that the burthen of proof lays on the defendant, is apparent from principle, and is abundantly established by authority. Upon principle-the plaintiff claims judgment, on the general rule, that wagers fairly won are recoverable; the defendant, to be exonerated from the payment of the money, must bring the case within some exception to the rule. Upon authority;-a wager was laid on the event of a decision of the House of Lords on an appeal from the court of the chancery (a). If this wager had been made with one of the "judges or Lords (says Lord Mansfield) it would have been "a bribe. "But (he adds) there is no fact of that sort in this case." (a) Jones against Randall & another 1 Cowp. 37. So in our case if the wager had been with a voter, and before the poll was closed, it would have been a bribe, but there is no fact of that sort in this case. Also, the much contested case of Good against Elliott (a) where a wager was, that A had purchased a waggon of B; it was endeavoured to bring it within the exception contained in the fourth class above stated, viz. "such as affect the "feelings or interests of third persons." But Grose, justice, after admitting that wagers, that injure third persons, are void, says, “now it does not appear, that such a bet is an injury to any but the loser. It may be said, that it may involve a question, whether L. Tye stole it; but it does not necessarily involve that question; and therefore, after verdiet, we are to presume that it did not. So, in the case before the Court, it may be said, that the bet may involve a question of bribery; but that does not necessarily follow, and the court, after verdict, will presume that it did not. It is, in this case, remarked by Ashurst, justice, that Lord Mansfield, in the ease of Da Costa against Jones, directed the defendants counsel, in addition to his motion, in arrest of judgment, to ; move for a new trial, intimating, that in that way, he might have the chance of the advantage of the wager affecting the interest of the Chevalier, as well as the objections of the indecency of the evidence, which appeared upon the face of the record; which shews, that Lord Mansfield was of opinion, that a wager was not illegal, because, by some possible supposition which ingenuity might devise, it might affect the interest of a third person; but, in order to make it illegal, it must appear, that such circumstances did actually exist, which must necessarily or naturally tend to affect the interest of a third person. Lord Kenyon, in the same case, (Good against Elliott) asks: What is there in the present case that can affect the character of the woman who had bought the waggon? Nothing of that sort appears upon the record, and we can make no inference. The last case which I shall notice is Lansing against Lansing (b). This was a bet laid, after the poll was closed, (a) 3 Term Rep. 693. (6) 8 N. Y. J. R. 454, 1812 SMYTH against M'MASTERS. 1812. SMYTH àgainst M'MASTERS. and, if not liable to the following objections, is an express authority in the defendant's favour. But first, it was a case of certiorari, the sum in controversy was very small, and the cause does not appear to have been argued by counsel, nor were any deliberate opinions given by the Court. Secondly, it is stated to have been decided, on the authority of Bunn against Riker, "that a bet, involving an inquiry into "the validity of the election of governor, was void on principles of policy." That was not the case of Bunn against Riker; but it was, as I have before shewn, a wager laid between two voters, before the poll was closed. It is true Van Ness justice, puts it also on the ground of being against public policy, involving an inquiry into the validity of the election, but no case can be produced to justify such reasoning, and it is in direct opposition to the principles decided in Jones against Randall. Per CURIAM. Rush, President. This is a wager on the election of a chief magistrate; and if ever a wager deserved reprobation, it is one of this description. In the State of New-York, it has been decided, after argument, that a wager of this kind, whether laid before or after an election, cannot be recovered; without adopting all the reasoning of the Court, in those cases, we have no hesitation in saying, we concur in both decisions. Even in England they have guarded their elections from this new species of corruption, and have vacated all such contracts, as are contrary to sound policy. Popular suffrage, is the very essence of Freedom, and cannot be protected by tribunals of justice, with too much vigilance and firmness. Those external impressions that have a tendency to disturb its orderly and regular motions, should be discountenanced, as repugnant to the vital interest of our Country. To the usual motives that actuate voters, it would be monstrous to permit pecuniary considerations to be mingled. The success of an election might eventually become a matter of speculation and profit, like a horse-race, rather than an acquisition to the freedom and happiness of the people. Where a man has actually voted, prior to his laying a wager on the election, he is not indifferent to the result. Though he himself cannot become a corrupt voter, he may be induced, under the influence of the wager, to corrupt others. What were the motives of Smyth and M Masters, form no part of the question. Is the contract injurious to the public welfare? In our opinion, it is equally repugnant to morality, to sound policy and to the laws of the state, passed for the avowed purpose of preserving the purity of our public elections. It would be in vain to enact laws against bribery, and to authorize at the same time, wagers, of this kind, which, like a torrent of corruption, would carry all before them. Even if the bet had been laid between persons who were not voters, which does not appear to be the case, yet, as it might lead to a decision, by the judicial branch, on the validity of an election, and consequently to the right of a member to a seat in the legislature, the point ought never to be brought into discussion. It is obvious, that the legislative and judieial authorities might be put into a state of collision, upon a question, which it is apprehended, the legislature alone is competent to determine. Upon a case stated for the opinion of the Court they might give judgment, prior to the house of assembly deciding it, who might perhaps, afterwards, give a contrary decision. The most effectual way to avoid this, is judicially to pronounce, as they have done in New-York, all wagers upon the result of elections, to be illegal and void. The constitution of our state declares, that elections shall be free. The body of the voter shall be equally free from constraint, and his mind from insuperable bias. A wager, that a certain person will be elected, puts the mind as completely into trammels, as a state of duress puts the body of the voter. The mind cannot act freely, as long as the man is held in bondage to his mercenary views and engagements; and, having divested himself of his own independence, he is 1812. SMYTH against M'MASTERS. 1812. SMYTH against a fit instrument of corruption to fasten the chains of slavery upon all around him. It is the opinion of the Court, that the plaintiff cannot reM'MASTERS. cover, and that Judgment be entered for the defendant. Judgment for the defendant. An alder. man has no power to issue a scire facias zance to A SMITH against WILDS. JUDGMENT was obtained before Mr. Alderman Shoemaker, against Philip White, at the suit of the on a recogni- present plaintiff; from which the defendant appealed, and gave the defendant Wilds, as his bail. After judgment obtained on the appeal, the plaintiff proceeded against the the bail on the appeal, by a scire facias, issued by the alderman. Judgment was rendered in his favour, and the defendant having removed the proceedings to this Court, by a certiorari, the following exception was filed. appeal, after judgment obtained on the appeal, in the Court of Common Pleas. « The alderman had no power to issue the scire facias." Atherton, for the defendant, in support of the exception, said, that the fourth section of the one hundred dollar act directs the magistrate, in case of an appeal, to transmit to the prothonotary the whole proceedings had before him, and declares, that [from] thence the suit shall take grade with, and be subject to the same rules, as other actions where the parties are considered to be in Court; from which, he said, it was evident, that all proceedings, subsequent to appeal, whether against the defendant or his bail must take place in this Court. That the only plausible objection to issuing the scire facias from the Common Pleas, was, that they have not possession of the original recognizance, but that objection would be sufficiently answered by observing, that when the act required the whole proceedings |