Love v. Harvey

114 Mass. 80

Opinion

Gray, C. J.

In England and in New York, actions on wagers upon questions in which the parties had no previous interest were frequently sustained, until the Legislature interposed and declared all wagers to be void. 1 Chit. Con. (11th Am. ed.) 735-738. 3 Kent Com. 277, 278. In Scotland, the courts refused to entertain such actions. Bruce v. Ross, 3 Paton, 107, 112; S. C. cited 3 T. R. 697, 705.

In Massachusetts, the English law on this subject has never been adopted, used or approved, and, although the question has not been directly adjudged, it has long been understood that all wagers are unlawful. Const. Mass. c. 6, art. 6. Amory v. Gilman, 2 Mass. 1, 6. Ball v. Gilbert, 12 Met. 397, 399. Sampson v. Shaw, 101 Mass. 145, 150. Met. Con. 239. There are decisions or opinions to the same effect in each of the New England States. Lewis v. Littlefield, 15 Maine, 233. Perkins v. Eaton, 3 N. H. 152. Hoit v. Hodge, 6 N. H. 104. Collamer v. Day, 2 Vt. 144. West v. Holmes, 26 Vt. 530. Stoddard v. Martin, 1 R. I. 1, 2. Wheeler v. Spencer, 15 Conn. 28, 30. See also Edgell v. M'Laughlin, 6 Whart. 176; Rice v. Gist, 1 Strob. 82.

It is inconsistent alike with the policy of our laws, and with the performance of the duties for which courts of justice are established, that judges and juries should be occupied in answering every frivolous question upon which idle or foolish persons may choose to lay a wager.

The ruling at the trial was therefore correct, and the defendant, having received the money from the stakeholder after notice from the plaintiff not to pay it over, was liable to the plaintiff under the count for money had and received. McKee v. Manice, 11 Cush. 357.

Exceptions overruled.