Opinion
(August Term, 1851.)
A bond given for money lost upon a wager on the result of a public election, though neither of the parties be a voter, is based upon an illegal consideration, being against public policy, and is therefore void.
APPEAL from Dick, J., at BURKE Fall Term, 1850.
Debt on a bond for $100. The defense relied on was under a special plea that the bond was given for an illegal consideration to secure money lost upon a bet on the election of James K. Polk as President of the United States by the people. The defendant proved that pending the election, the plaintiff let him have a watch worth $40, for which the defendant was to pay him $125 if James K. Polk was (345) elected President of the United States by the people. Under this agreement the plaintiff delivered to the defendant the watch, and the defendant delivered to the plaintiff a bond for $125 with the above condition expressed therein. After the election the defendant made a payment of $25 and executed the bond sued on to secure the balance of the $125 bond. The jury returned a verdict for the plaintiff, subject to the opinion of the court upon the question reserved. The court being of opinion with the plaintiff, he had judgment, and the defendant appealed.
Avery for plaintiff.
J. W. Woodfin and Tate for defendant.
It is clear that this was "a bet" upon the result of the presidential election; and the bet being lost, by the admission of the parties, the bond sued on was executed to secure the balance remaining unpaid. It was not proven that the parties, or either of them, were voters, and no presumption of that fact can be made to aid the defense. We are, therefore, to take it that neither were voters; and the question is presented, Can a bond given to secure money lost on a wager on the result of a presidential election then pending, made by persons who are not voters, be recovered?
It is settled that the action cannot be maintained if either of the parties is a voter. Allen v. Hearne, 1 T. R., 56; Burns v. Riker, 4 Johnson., 426. We think it cannot be maintained although neither of the parties is a voter, and put our opinion on the broad ground that the wager is against public policy, and the courts ought not to countenance it by aiding in the collection of a bond given to secure the money won.
Ours, both Federal and State, are representative, republican (346) governments, and rest upon elections by the people as "the cornerstone." Everything — not merely the proper action, but the very existence of our institutions — depends on the free and unbiased exercise of the elective franchise; and it is manifest that whatever has a tendency in any way unduly to influence elections is against public policy. This position, we assume, as self-evident. It seems equally clear that the practice of betting on elections has a direct tendency to cause undue influence, for, by the wager, the parties acquire a pecuniary interest in the election altogether foreign and at war with its true purpose and design which leads them into temptation, more or less strong, according to the amount of the wager, to exert every and any means by which to effect the result and to strengthen one side and weaken the other. One who has a wager depending follows but the instinct of interest when he resorts to the perversion of facts, the circulation of falsehood, treating and bribing, for the purpose of gaining votes. The evil is not confined to himself. His relations and friends become excited and stimulated to exercise, not for the good of the country, but for the pecuniary interest growing out of the wager. Such a state of things is against the public good.
Putting our decision on this broad ground, the fact that the parties to the wager are not voters has no bearing on the question, because the evil effects of the practice of betting on elections pointed out above do not at all depend on that circumstance. One who is not a voter may be tempted as strongly as one who is a voter to pervert facts, circulate falsehoods, treat and bribe, and the infection extends as readily to his relatives and his friends.
While concurring in the correctness of the decisions in the two cases above cited, we must be allowed to say that the ground upon which they are put is very narrow, to wit, that as both, or one, of the parties were voters, the wager was illegal because it created a pecuniary (347) interest calculated to swerve him from his duty, for although he may have bet upon the candidate for whom, at the time, he intended to vote, yet, perchance, but for this pecuniary interest he would have changed his vote, whereas after the bet he was not open to conviction and did not "stand indifferent."
The probability that a single vote might have been changed but for the fact that the door to conviction was shut by the wager is certainly very narrow ground. It presented itself, however, in those two cases, and the Judges chose to rest on it without deciding how it would be if neither of the parties had been voters. No case is found in which the question presented to us is decided, and we are at liberty to put our decision upon the broad ground which we have assumed as the result of principle and the "reason of the thing." This ground is so broad as to make it immaterial whether the parties are voters or not.
Burns v. Riker, supra, aids our conclusion. There the parties were both voters, but one had cast his vote; so, the reasoning in Allen v. Hearne, where the bet was laid before the poll was opened, did not apply to him. The other was on the day the bet was made, 50 miles from his residence, where alone he was entitled to vote, and the polls would be closed at sunset on that day. The difference, in the opinion of the Judges, turned upon the possibility of his being able, in 1807 (before the age of railroads) to ride the 50 miles in time to cast his vote, and to carry out the reasoning upon the further possibility that in thus riding, he might have concluded to change his vote but for the pecuniary interest created by the wager.
The broad ground which we assume is recognized and acted upon in Atherton v. Beard, 2 T. R., 610, where the Court refuse to support an action for a wager as to the future amount of a branch of the public revenue, and Buller, Judge, says Lord Mansfield was of opinion that any wager as to a public event would be void. So in Gilbert (348) v. Sykes, 16 East., where it was agreed to pay certain sums per day as long as Bonaparte lived, this was held to he a wager, and illegal, as tending to create a private pecuniary interest in a matter of public concern.
PER CURIAM. Venire de novo.
Cited: Burbage v. Windley, 108 N.C. 363.