But horse races for a less sum than 50% are expressly prohibited by the second section of 13 Geo. 2.; and, consequently, wagers on such borse races are illegal. These statutes, viz. 13 and 18 Geo. 9., are confined to boná fide horse racing only; for in Ximenes v. Jaques, 6 T. R. 499., where the plaintiff obtained a verdict on a wager for 100 guineas, that he could perform a certain journey, in a post chaise and pair, within a given time, the court arrested the judgment (6). So where A. betted with B. " 500 guineas and a dinner," that A.'s horse should go from London to Sittingbourne sooner than B.'s two horses should go the same distance, B.'s horses to be placed at any distance from each other that B. should think proper; the wager having been won by B. and an action brought to recover the amount of the wager, and verdict for plaintiff, the court arrested the judgment, on the ground that the subject of the wager was not that species of horse race or match which was legalized by stat. 13 & 18 Geo. 2. 2. An action cannot be maintained upon such wagers as in the event may have an influence on the public policy of the kingdom. On this principle it was holden, that a wager between two electors, on the event of the election of members to serve in parliament, was void; because it raised an improper bias in the minds of the parties to vote for one or other of o Johnson v. Bann, 4 T. R. 1. p Whaley v. Pajot, 2 Bos. & Pul. 51. q Allen v. Hearn, 1 T. R. 56. nature of 16 Car. 2. and 9 Ann., that these statutes ought to be construed strictly, in order to enforce the principle on which they are founded, viz. to prohibit all horse racing, and that the 13 & 18 Geo. 2. are from their nature to be so construed as to encourage the breed of horses, and to permit that species of horse racing only called running on the turf. It is to be observed, that stat. 13 Geo. 2. speaks of entering, placing, starting, &c. and that the expression, any place or places whatsoever," used in 18 G. 2. can hardly mean "all England." Per Lord Eldon C. J. in Whaley v. Pajot, 2 Bos. & Pul. 54. 66 (6) The reason of this decision is not stated in the report of the case; but in Whaley v. Pajot, 2 Bos. & Pul. 54. Lord Eldon C.J. said" upon inquiry of the judges of the Court of King's Bench, we find, that the judgment of the court in Ximenes v. Jaques proceeded on an opinion, that the stat. 13 & 18 Geo. 2, related to bona fide horse racing only." the candidates, which bias would be subversive of the freedom of elections, and detrimental to the constitution.. Every contract in restraint of marriage is illegal, as being against the sound policy of the law. Hence a wager, that the plaintiff would not marry within six years, was hoiden to be void; for although the restraint was partial, yet the immediate tendency of such contract, as far as it went, was to discourage marriage, and no circumstances appeared to shew that the restraint, in the particular instance, was prudent and proper. Any wager which leads to a public inquiry into the mode of playing an illegal game, e. g. hazard, by which the byestanders may acquire a knowledge of it, is contrary to good morals and the policy of the law, and, therefore, not a ground on which an action can be maintained. In like manner, the court will not entertain an action on a wager upon an abstract question of law or judicial practice, not arising out of pre-existing circumstances, in which the parties have an interest'. An action cannot be maintained upon a wager on a cock-fight", because it is a barbarous diversion, which ought not to be encouraged or sanctioned in a court of justice; and further because it would tend to the degradation of the court to entertain such inquiries. 3. So if the subject of the wager lead to improper inquiries, which respect the interest and general importance of the country, they are illegal, as being contrary to sound policy; as wagers on the amount of the hop duties, or the receipt tax, or any other branch of the public revenue. And this rule holds, although the actual discussion may be excluded by the special circumstances of the case: as where the wager being on the amount of the hop duties, the defendant had admitted that he had lost his wagery; so where defendant had given a promissory note for the amount of the wager. 4. Where the discussion of the subject of the wager will be attended with injury to a third person, and lead to indecent evidence. On this principle, a wager between two indifferent per r Hartley Rice, 10 East, 22. x Atherfold v. Beard, 2 T. R. 610, sons on the sex of the Chevalier D'Eon, who had appeared to the world as a man, and acted in that character in a variety of capacities, was holden illegal (6). (6) The Chevalier D'Eon was for many years asserted and implicitly believed to the last to be a female, of which sex the Chevalier latterly wore the attire. This curious question, however, was finally set at rest on the death of the Chevalier in May 1810, when the body was dissected in the presence of several professional gentlemen, and it was certified, by an eminent surgeon, that the male organs were in every respect perfectly formed. APPENDIX. No. I. 1.-Notice of Motion to put off a Trial for the Absence of a Witness. In the King's Bench. A. B. plaintiffs and C. D. defendant. Take notice, that this honourable court will be moved on, &c. or so soon after as counsel can be heard, that the trial of this cause may be put off until next term, on account of the absence of a material witness on the part of the defendant, and in the mean time all further proceedings be stayed. To Mr. E. F. plaintiff's attorney. Your's, &c. G. H. defendant's attorney. § 2.-Affidavit in Support of Motion to put off Trial for the Absence of a Witness. In the King's Bench A. B. plaintiff, and C. D. defendant. maketh oath and saith, term last past, and that sitting within (or C. D. of, &c. the defendant in this cause, that issue was joined in this cause in notice was given for the trial thereof at the at the sittings after) the said term: And this deponent further saith, that E. F. late of, &c. is a material witness for him this deponent in the said cause, as he is advised and believes, and that he cannot safely proceed to the trial thereof without the testimony of him the said E. F. And this deponent further saith, that in consequence of the notice of trial so given as aforesaid, he this deponent caused inquiry to be made, &c. (stating the nature and result of the inquiry made after the witness, and the time when he is likely to attend). No. II. Demurrer to Evidence and Joinder.* "Afterwards on the day, and at the place within contained, before Sir G. W. knight, one of the barons of our lord the king, of * For form of plea puis darrein continuance, see ante p. 123. his Court of Exchequer at Westminster, Sir J. B. knight, one of the justices of our said lord the king, assigned to hold pleas in the court of our said lord the king, before the king himself, and others their fellows, justices of our said lord the king, assigned to take the assizes in and for the city of Win the county of the same city, according to the form of the statute, &c. come as well the withinnamed A. B. esq. as the within-named C. D. esq. by their attornies within-named. And the jurors of the jury, whereof mention is within made; that is to say R. L. &c. being called likewise come, and being chosen, tried, and sworn to say the truth of the premises within contained; as to the first issue between the parties within joined, say, that the said C. D. is guilty of the trespass within complained of, in manner and form as the said A. B. hath above complained; and they assess the damages of the said A. B. by reason thereof to sixpence. Aud as to the issue lastly within joined between the said parties, the said C. D. shews in evidence to the jury aforesaid, to prove and maintain the issue lastly within joined on his part by one witness, That" (so state the evidence)" And the said A. B. says, that the aforesaid matter to the jurors aforesaid, in form aforesaid shewn in evidence by the said C. D. is not suf ficient in law to maintain the said issue lastly within joined, on the part of the said C. D., and that he the said A. B., to the matter aforesaid, in form aforesaid shewn in evidence, hath no necessity, nor is he obliged by the laws of the land to answer; and this he is ready to verify: Wherefore for want of sufficient matter in that behalf shewn in evidence to the jury aforesaid, the said A. B. prays judg ment, and that the jury aforesaid may be discharged from giving any verdict upon the said issue; and that his damages by reason of the trespass within complained of, may be adjudged to him, &c." "And the said C. D.*, for that he hath shewn in evidence to the jury aforesaid, sufficient matter to maintain the issue lastly within joined, on the part of the said C. D., and which he is ready to verify; and for as much as the said A. B. doth not deny, nor in any manner answer the said matter, prays judgment; and that the said A. B. may be barred from having his aforesaid action against him, and that the jury aforesaid may be discharged from giving their verdict upon the issue lastly joined, &c. Wherefore let the jury aforesaid be discharged by the court here, by the assent of the parties, from giving any verdict thereupon." No. III. Bill of Exception. "Be it remembered, that in the term of the Holy Trinity, in the year of the reign of our sovereign lord George the 3d. now king of Great Britain, and so forth, came A. B. by his attorney, into the court of our said lord the king of the Bench at Westminster, and impleaded C. D. E. F. and G. H. in a certain plea of trespass, on which the said A. B. declared against them, That" (set out the * Joinder. |