2

action of the party who asserts the right. It is not equally true that one person may from such motives influence another person to do the same thing." But a contrary ruling was made in some Kentucky cases in which a similar agreement, not to sell to any one indebted to any member of the association, was made a part of the obligations of the members. Likewise, in a Rhode Island case, it was held to be lawful for an association of plumbers to agree not to buy of wholesale dealers in plumbers' goods, who sold to a plumber who was not a member of the plumbers' association. This was held to be lawful competition.3

While it is not the habit, in general, for employers to combine for mutual protection against employees, since in most cases the individual employer finds himself strong enough to cope with the demands of the trade union, a combination has been made among certain classes of employers, street-car companies for example, one of whose regulations is that the members, on being notified, shall not give employment to a workman who is on a strike with a member of the combination. When a strike is ordered, in such a case, a list of the names of the strikers is sent to the members of the association, who will, in carrying out their obligations to the association, refuse to give employment to a striker who applies for work. In Pennsylvania, it has been held that such a combination does not constitute an unlawful conspiracy. But a contrary ruling was made in a case in which an apprentice, who had been in the employ of B. & Co., under indentures which were supposed to be valid but which were not, was discharged, and the employer notified others in the same trade not to engage this apprentice. The court held that the apprentice

1 Delz v. Winfree, 80 Tex. 400.

2 Schulten v. Bavarian Brewing Co., 96 Ky. 224; Brewster v. Miller (Ky. 1897), 41 S. W. 301.

3 Macauley v. Tierney, 19 R. I. 255.

4 Bradley v. Pierson, 148 Pa. St. 502.

was entitled to damages, because this notice of his discharge had prevented his procuring employment.1

A word of explanation, why I have given so much prominence to the two English cases of Mogul Steamship Company v. MacGregor, and Allen v. Flood, in this discussion, is not inappropriate. In England, the right of capitalists, manufacturers and traders to combine for mutual economic advantage, has never been materially affected by statutory modifications. On the other hand, combinations of workingmen have until a late day been prohibited in England by statute. These statutes have now been repealed, and trades-unions and other labor combinations have been expressly legalized. The first of these English cases gives a most elaborate statement of the common law as to the legality of capitalistic combinations; while the second case presents the same law as it bears upon the legality of labor combinations, both unaffected by statutory condemnation or restrictions of such combinations. In the United States,

on the other hand, legislatures have been so exceedingly active in controlling, restricting, and finally in prohibiting all combinations in restraint of trade and competition, that it is almost impossible for an analytical jurist to determine to what degree these statutes have controlled the judicial opinion, as to what acts constitute at common law an actionable conspiracy. A comparison of these two English cases with the American decisions on trade and labor combinations will also be helpful in pointing out how much confusion of thought can be created by ill-considered and poorly constructed legislation on a problem, which reaches so deep down into the mysteries of human desires, and which is so completely within the control of the inexorable laws of nature, and the social forces.

1 Blumenthal v. Shaw, 77 Fed. 954; 23 C. C. A. 590.

SECTION 116. Wagering contracts prohibited.

117. Option contracts, when illegal.

In

§ 116. Wagering contracts prohibited. At all times in the history of the English and American law, gambling of every variety has been the subject of police regulation. The lower and more common forms of gambling, when conducted as a business, are now uniformly prohibited and the prosecution of them made a penal offense. Ordinarily, however, wagers or bets are only so far prohibited or regulated that the courts refuse to perform the contracts. dependently of statute, no wager of any kind constitutes a penal offense. It requires statutory legislation to make betting a misdemeanor. Indeed, such legislation would be open to serious constitutional objections. Gambling or betting of any kind is a vice and not a trespass, and inasmuch as the parties are willing victims of the evil effects, there is nothing which calls for public regulation. But when they pursue gambling as a business, and set up a gambling house, like all others who make a trade of vice, they may be prohibited and subjected to severe penalties. And so, also, if they apply to the courts for aid in enforcing the contracts made in the indulgence of this vice, the courts can properly refuse to assist them.

A wager or bet, according to Mr. Bouvier, is " a contract by which two parties or more agree that a certain sum of money or other things, shall be paid or delivered to one of them on the happening, or not happening, of an uncertain event." Employing the word in this sense, it is pretty well settled that all wager contracts were not void at common law. The distinction between the legal and the illegal wagers seems to rest upon the good or evil character of the event or act, which constitutes the subject-matter of

1 See, ante, § 60.

2 See, post, § 120. See contra State v. Roby, 142 Ind. 168; State ex rel. Matthews v. Forsythe, 147 Ind. 466; Wooten v. State, 23 Fla. 335; State v. Donovan (Nev.), 15 Pac. 783.

the wager. If the wager was about a harmless and legal act or event, the wager was itself legal, and the wager contract could be enforced. But if the wager has reference to the happening or doing of some act which is illegal or against good morals, the wager is void and will not be enforced." In no part of the civilized world are contracts for the insurance of life or property against accidental destruction held to be invalid.

The English doctrine is clearly sustained, as a part of the common law, by the decision of some of the American courts. But, except in the matter of insurance contracts, all wager contracts are declared to be invalid in Maine, Massachusetts, New Hampshire, Vermont, and Pennsylvania, whatever may be the character of the event or act, which constitutes the foundation for the wager. In many

1 Thus it was lawful at common law to bet that A. has purchased a wagon of B. (Good v. Elliott, 3 T. R. 693); or to bet on a cricket-match. Walpole v. Saunders, 16 E. C. L. R. 276. See, also, generally, in support of the position taken above, Sherborne v. Colebach, 2 Vent. 175; Hussey v. Crickell, 3 Campb. 168; Grant v. Hamilton, 3 M. L. 100; Cousins v. Mantes, 3 Taunt. 515; Johnson v. Lonsley, 12 C. B. 468; Dalby v. India Life Ins. Co., 15 C. B. 365; Hampden v. Walsh, L. R. 12 B. D. 192.

2 Thus, wagers are void, which rest upon the result of an illegal game (Brown v. Leeson, 2 H. Bl. 43); which involve the abstinence from marriage (Huntley v. Rice, 10 East. 22); which refer to the expected birth of an illegitimate child (Ditchburn v. Goldsmith, 4 Campb. 152); or to the commission of adultery. Del Costa v. Jones, Cowp. 729. See also, to the same effect, Shirley v. Sankey, 2 Bos. & P. 130; Etham v. Kingsman, 1 B. & Al. 684.

3 Bunn v. Rikes, 4 Johns. 426; Campbell v. Richardson, 10 Johns. 406; Dewees v. Miller, 5 Harr. 347; Trenton Ins. Co. v. Johnson, 4 Zabr. 576; Dunman v. Strother, 1 Tex. 89; Wheeler v. Friend, 22 Tex. 683; Monroe v. Smelley, 25 Tex. 586; Grant v. Hamilton, 3 McLean (U. S. C. C.), 100; Smith v. Smith, 21 Ill. 244; Richardson v. Kelley, 85 Ill. 491; Petillon v. Hipple, 90 Ill. 420; Carrier v. Brannan, 3 Cal. 328; Johnson v. Hall, 6 Cal. 359; Johnson v. Russell, 37 Cal. 670.

4 See Lewis v. Littlefield, 15 Me. 233; McDonough v. Webster, 68 Me. 530; Gilmore v. Woodcock, 69 Me. 118; Babcock v. Thompson, 3 Pick. 446; Ball v. Gilbert, 12 Met. 399; Sampson v. Shaw, 101 Mass. 150; Perkins v. Eaton, 3 N. H. 152; Clark v. Gibson, 12 N. H. 886; Winchester v.

of the States, the common law is changed by statutes which prohibit all wager contracts, and forbid their enforcement by the courts. Thus, by the New York Revised Statutes,1 "all wagers, bets, or stakes, made to depend upon any race, or upon any gaming by lot or chance, casualty, or unknown or contingent event whatever, shall be unlawful. All contracts for, or on account of, any money or property or thing in action so wagered, bet or staked shall be void." 2 It is to be observed, that in all of these judicial and legislative determinations of the illegality of wagering contracts, although they differ in respect to the legality of particular wagers, they all rest upon the proposition that the prohibited wagers tend to develop and increase the spirit of gambling and at the same time serve no useful purpose. For these reasons all contracts, based upon such wagers, are declared to be illegal. Inasmuch as insurance contracts serve a useful purpose, they are not prohibited; and it is not likely that a law, prohibiting them, would be sustained. It is, therefore, the evil effect of betting, coupled with its practical uselessness, that justifies its prohibition; for all unobjectionable contracts have, as an incident of property, an inalienable right to some effective remedy in the courts of the country.3

§ 117. Option contracts, when illegal. -The common forms of gambling are not difficult to define or distinguish from harmless or unobjectionable transactions. The enforcement of the law against gambling in such cases is not trammeled with confusion as to what constitutes the gravamen of the offense. It is the staking of money on the

Nutter, 52 N. H. 507; Collamer v. Day, 2 Vt. 144; Tarlton v. Baker, 18 Vt. 9; Phillips v. Ives, 1 Rawle, 36; Brua's Appeal, 5 Sm. 294. 11 Rev. Stats. N. Y. 661, 8.

2 Similar legislation is to be found in New Hampshire, Virginia, West Virginia, Wisconsin, Missouri, Illinois, Ohio and Iowa, and other States. 3 See, post, § 178.