Gilbert, Clerk, against Sir Mark Sykes
| Jurisdiction | England & Wales |
| Judgment Date | 12 June 1812 |
| Date | 12 June 1812 |
| Court | Court of the King's Bench |
English Reports Citation: 104 E.R. 1045
IN THE COURT OF KING'S BENCH
Referred to, Wilson v. Carnley, [1908] 1 K. B. 735.
gilbert, Clerk, against sir mark sykes. Friday, June 12th, 1812. A wager by which the defendant received from the plaintiff 100 guineas on the 31st of May 1802, in consideration of paying the plaintiff a guinea a-day as long as Napoleon Bonaparte (then first Consul of the French Eepublie) should live; which bet arose out of a conversation upon the probability of his coming to a violent death by assassination or otherwise, is void on the grounds of immorality and impolicy. [Referred to, Wilsm v. Carnley, [1908] 1 K. B. 735.] The plaintiff declared in assumpsil upon a wager, and stated the consideration and promise to be, that if he would then pay the defendant one hundred guineas, on the 31st of May 1802, the defendent would pay him one guinea a day so long as Napoleon Bonaparte should live: and then averred the payment to the defendant of the 100 guineas, which he accepted : and that N. B. was still living; of which the defendant had notice; and further, that though the defendant did pay to the plaintiff a guinea a-day for a long time after the making of the promise and after the receipt of the 100 guineas, namely, up to the 25th of December 1804, yet that he had not paid the guinea a-day since; and so the plaintiff concluded to his damage of 22961. at that rate, from the defendant's breach of promise. At the trial at York before Thompson, B. the facts stated in the declaration were proved, together with other circumstances of subsequent confirmation of the wager by the defendant, which in the ultimate consideration of the case left no doubt as to the fact of the defendant's final acceptance of it; though there was material evidence, in (a) 13 East, 161. 1046 GILBERT V. SYKES 16 EAST, 151. the circumstances under which the wager was originally proposed and taken up, which1 was at the defendant's own table after dinner, and in the opinion of those who [151] were present at the time, to invalidate the serious acceptance of it on the part of the defendant, if he had continued to act under the original impression upon himself and' the company present; but he seemed to have considered himself as bound in honour, against that impression, to persevere in the bet; not being willing to accept the option of cancelling it, as a favour, which had been offered to him by the plaintiff. The jury however, under all the circumstances of the case, negatived the bet by finding a verdict for the defendant, on the ground that it was not a serious engagement at the time. And to set aside this verdict as against evidence a motion was made, and a rule nisi granted, in the last term ; in the discussion of which the principal question was ultimately resolved into the legality of such a wager as this. For this purpose the only other material facts necessary to be stated are that at the time of the wager made, Bonaparte, then First Consul of the French Republic, was at peace with this country, though he shortly after became, and was at the time of the action brought, an open enemy of the King's; and that the bet arose out of a conversation concerning the probability of his assassination or other violent death. Topping, Scarlett, and Hullock, shewed cause against the rule, and upon the matter of law argued, first, that the action would not lie, because the plaintiff had no particular interest in Bonaparte's life, and therefore not within the stat. 34 Geo. 3, c. 48, considering it in effect as an insurance on the life. They cited Atherford v. Heart], (a)1, though they admitted that Da Costa v. Jone^V)1 went to establish that a wager upon an indifferent subject, with-[152]-out interest, was allowed by law. Secondly, that the wager was in effect a contract for an annuity on Bonapartefe life; arid that since the Annuity Act, 17 Geo 3, c. 26, no such contract could be created without writing memorialized. Upon this head it was further argued, that at common law an annuity could not be granted but by deed, as not lying in livery; and cited 2 Blac. Com. 317, which classes annuities amongst incorporeal hereditaments; and other books, as Co. Lit. 172 a. 144 b. 145 a. Thirdly, that no contract which was not to be executed within a year, as this was not, could be enforced without writing, by the 4th section of the Statute of Frauds; and they cited Fenton v. Emblers (a)2, Peter v. Compton (6)2, and Boydell v. Drummond (c)1. Fourthly, that the wager was void on the ground of impolicy, as giving an interest to a subject (the plaintiff in this instance) in the life of a foreign Sovereign who might be and had actually become an enemy : and that at all events it could not be enforced during the war. And they cited Gamba v. Le Mesurier (d)1. Fifthly, that it was void on the ground of immorality, as tending to -encourage assassination. Upon the two last grounds they noticed Andrews v.'Horne (e)1, and Lord March v. Pigot (f)\ which were referred to upon moving for the rule. As to the first of these, which was a promise to pay 201. if Charles Stewart should be King of England within six months, they denied that it was law, as well because of its obvious impolicy, as...
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