Summary
In Shepherd v. Sawyer, 6 N.C. 26, the Court held that when "A agrees with B for 2 1/2 per cent premium paid down to insure a negro slave reported to be lost in Pasquotank River, B has no interest in the negro, yet, his loss being proved, B is entitled to recover his value."
Summary of this case from Burbage v. WindleyOpinion
July Term, 1811.
From Camden.
1. A agrees with B, for 2 1/2 per cent premium paid down, to insure a negro slave reported to be lost in Pasquotank River. B had no interest in the negro; yet his loss being proved. B is entitled to recover his value.
2. Innocent wagers are recoverable. They are illegal, where (1) they be prohibited by statute; (2) they tend to create an improper influence on the mind in the exercise of a public duty; (3) they are "contra bonos mores," or (4) they in any other manner tend to the prejudice of the public or the injury of third persons.
THE jury found for the plaintiff, and assessed his damages to £ 200, subject to the opinion of the court upon the following case: The plaintiff, Shepherd, started a boat loaded with brick, from Richmond, on Pasquotank River, down to Davis' bay, a distance of about seven or eight miles; the boat was rowed by a white man and several negroes, among whom was the fellow Jacob, hereafter mentioned. A few days after the boat was started a report was circulated that the boat and all persons on board were lost. The plaintiff and defendant were together at Camden Courthouse when this report reached that place, and the defendant offered to insure the negro fellow (27) Jacob for the premium of 2 1/2 per cent, which offer was accepted by the plaintiff, and the premium was paid down. It afterwards appeared that Jacob and all the other hands on board the boat were lost. The jury found that the conduct of the plaintiff was fair, open and candid, but that he had no interest whatever in the property insured.
It is submitted to this Court to decide whether, upon the facts found by the jury in this case, the plaintiff be entitled to recover. It is not contended that this case falls within the purview and meaning of any act of Assembly passed in this State for the purpose of suppressing unlawful gaming; and there can be no doubt but that the common law (which is the law of this State) interposes no obstacle to a recovery. Marshall on Insurance, 96, says: "Innocent wagers have long had the sanction of the common law. 11 Rep., 876; 1 Lev., 33; 5 Bur., 2802. They are only deemed illegal when they are prohibited by statute; when they tend to create an improper influence on the mind in the exercise of a public duty; when they are contra bonos mores, or in any other manner tend to the prejudice of the public or the injury of third persons." 6 Term, 499; 1 Term, 56; 2 Term, 610; Cowper, 729. And to the cases referred to by Marshall may be added the case of Good v. Elliott, 3 Term, 693. These authorities are conclusive. Let judgment be entered for the plaintiff.
Overruled: Burbage v. Windley, 108 N.C. 362.
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