We admit that by the common law a wager could be recoveredwhere it was not against public policy, or immoral, or did not tend to the detriment of the public, or affect the interests, feelings, or character of third parties. Yet the English Judges, from Mansfield to the present time, have, in almost every case which has arisen, expressed regrets that they have been bound by previous adjudications to hold any bet recoverable. And the American Courts, in following the English decisions, have expressed similar regrets. As the question whether any bet can be recovered in an action in this State is presented to this Court for the first time, we would invite particular attention to the case of Rice v. Gist, decided by the Court of Appeals of South Carolina, reported in 1 Strobhart's Reports, page 84, where the doctrine contained in previous decisions of the Courts of that State, quoted in the appellant's brief, is overruled, and the broad principle laid down that " all wagers are unlawful on their clear immoral tendency, and not to be recovered in a Court of justice."
The Court, in its opinion, says: " I agree fully, and so do a large majority of the Court, in the opinion of the Recorder, as expressed in Laval v. Myers, 1 Bail. 486."
The restrictions upon the legality of wagers have been multiplied at every step by the Courts in England, as will be seen by referring to Chitty on Contracts, 496, 497. No one can read the English books without feeling that the Judges there loathe the fetters with which they are bound on this subject, and that they most sincerely desire to say if they could, wagers are unlawful, and cannot be recovered.
Here, fortunately, we are under no such restraints. The case of Laval v. Myers, has opened the whole matter.
But however this Court may be disposed to regard wagers in general, the wager in this case was void, because it affected the interests of third parties, and because it was contrary to public policy.
JUDGES: The opinion of the Court was delivered by Mr. Justice Terry. Mr. Chief Justice Murray concurred.
OPINION
TERRY, Judge
At common law all wagers were recoverable, except such as were prohibited by law, were against public policy, or calculated to affect the interest, character or feelings of third parties. This principle is too well established to require either argument or authority. But it is contended by counsel that, inasmuch as the English Judges have uniformly looked with disfavor on this class of cases, and have frequently taken occasion to express their regret that a different rule had not been established, this Court should, as the question is for the first time presented in the State, without regard to precedent, declare all wagers illegal, on account of their manifest immoral tendency.
Such a course would, we conceive, be a usurpation of functions properly belonging to another department of government. The common law having been adopted as the rule of decision in this State, it is our duty to enforce it, leaving all questions of its policy, as applied to a particular class of contracts, for the consideration of the Legislature.
The questions which are made in the argument of counsel, as to the general utility of the work, which was the subject of the wager, its effect upon the interest of third parties, as well as the tendency of the wager to advance or retard such work, are, we conceive, questions of fact, which cannot properly be decided by a Court on demurrer.
The judgment of the Court below is reversed, and the cause remanded.