But a wager on the future market price of goods (b), or on the price of foreign stocks (c), is not illegal.

A wager as to the mode of playing an illegal game (d); or upon a boxing (e), or wrestling (ƒ) match; or a cock (g), or dog (h) fight, is illegal. And an agreement to sell a horse for 2007 if he trotted 18 miles within the hour, but for 1s. if he failed, is void; the price of the horse in effect depending on a horse-race, a game or wager illegal under the 9 Anne, c. 14 (i). And it seems that a wager upon the result of a sparring-match at a public exhibition, chiefly maintained to form scientific pugilists and encourage prize-fighting, is not sustainable (k). Nor will the courts sanction a wager made to try an abstract question of law, in which the parties have no interest (7); although in one case (m), a wager on the event of an appeal to the House of Lords from the Court of Chancery was holden good; the parties not having it in their power to bias the decision, and no fraud being intended.

And although a wager whether Charles Stuart would be king within a certain time (n), and another (o) between two sons on their fathers' lives, have been holden good; it is probable that the courts would not now sanction contracts of such a description.

2. A wager as to the sex of a third person (p); or whether an unmarried woman would have a child (9) by a certain day; are illegal; as unnecessarily leading to painful and indecent investigations.

(b) Hibblewhite v. M'Morine, 5 M. & W. 462; Morgan v. Pebrer, 3 Bing. N. C. 466; ante, 418.

(c) Wells v. Porter, 2 Scott, 141; 2 Bing. N. C. 722, 732; Elsworth v. Cole, 2 M. & W. 31; Morgan v. Pebrer, 3 Bing. N. C. 457.

(d) Brown v. Leeson, 2 H. Bla. 43. (e) Egerton v. Furzeman, 1 C. & P. 613, per Abbott, C. J.

(f) Kennedy v. Gad, M. & M. 225; 3 C. & P. 376, S. C.

(g) Squires v. Whiskin, 3 Camp. 140. (h) Egerton v. Furzeman, 1 C. & P. 613; R. & M. 213, S. C.

(i) Brogden v. Marriott, 3 Bing. N. C. 88; 2 Scott, 712, S. C.

(k) Hunt v. Bell, 1 Bing. 1; 7 Moore, 212. S. C.

(1) Henkin v. Guerss, 12 East, 247; 2 Camp. 408, S. C.

(m) Jones v. Randall, Cowp. 37;

K K

sed qu. See observations in argument, &c., Evans v. Jones, 5 M. & W. 79,

81.

(n) Andrews v. Herne, 1 Lev. 33; sed vide Gilbert v. Sykes, 16 East, 150; Good v. Elliott, 3 T. R. 697.

(0) Lord March v. Pigot, 5 Burr. 2802; sed vide Hussey v. Crickitt, 3 Camp. 172; Gilbert v. Sykes, 16 East, 162.

(p) De Costa v. Jones, Cowp. 729. In this case the judgment was arrested, on the ground that the wager was per se illegal.

(q) Ditchburn v. Goldsmith, 4 Camp. 152. This was a wager whether Joanna Southcott, a pretended prophetess, and who affected to be pregnant, would have a male child. Gibbs, C. J., stopped the trial, on its appearing she was unmarried, and said it was not material that she courted the inquiry.

It seems that a wager between two coach proprietors, whether or not a particular person would go by one of their coaches, and no other, is illegal, as exposing that person to inconvenience and importunity (r).

A wager as to the circumstances or solvency of a third person, is certainly so far objectionable that the judge might postpone the trial, upon the application of the third party, whose interest might be affected by the inquiry. But if the cause be tried, and the plaintiff recover a verdict, it seems, that neither can a writ of error be brought, or the judgment arrested, upon the ground that such a wager is necessarily illegal (s). In Thornton v. Thackray (s), it appeared that A. paid B. 75001. in consideration that B. should pay A. 10,000l., or such proportion of that amount, say 10,000l., as C. paid his legal general creditors. After verdict, the court would not arrest the judgment; and they held that the declaration which alleged that C. had paid his legal general creditors 10,000l., for the purpose of shewing that A. had won the wager, was warranted by the construction of the wager.

It is necessary to declare specially for money won on a wager, an indebitatus count not being sustainable (t).

Wagers, or bets, on parties gaming; and on horse-races; and wagering policies; and the right to rescind certain wagers and recover deposits paid thereon, will be hereafter considered.

A

(r) Eltham v. Kingsman, 1 B. & Ald. 683; but it was not necessary to decide the question in this case. wager whether A. kept an academy at a certain place has been held good; Murray v. Kelby, 2 Selw. N. P., tit. Wagers, 1419.

(s) Thornton v. Thackray, 2 Y. & J. 156; see id. 163; Robinson v. Mears, 6 D. & R. 26.

(t) Jackson v. Colegrave, Carth. 338; Bovey v. Castlemain, 1 Lord Raym. 69; 2 Chitty Pl. 6th ed. 137, 139.

VII. OF GUARANTEES AND INDEMNITIES (x).

1. Of the General Nature of a Contract to guarantee or become Surety; and of a Contract of Indemnity.

2. How Guarantees are affected by the Statute of Frauds. (1.) When the Enactment applies.

(2.) Of the Form, &c. of the Memorandum.

3. Of the Extent of the Surety's Liability.

4. When discharged therefrom by Conduct of the Creditor inconsistent with a Contract to guarantee.

1. The general character or nature of a contract to guarantee, or become responsible for the debt or act of another person, is sufficiently simple. It is a collateral engagement for another, as distinguished from an original and direct agreement for the party's own act. It is of the essence of this contract that there should be a principal debtor; and the party agreeing to become responsible for him incurs no obligation as surety, if no valid claim against the principal ever arises: and his liability as surety upon a tenable demand against the principal ceases when such demand is extinguished.

But the rule that a party cannot be liable upon a contract of guarantee, unless the principal has incurred a legal responsibility, is true, in some instances, in form or words, rather than in substance. In the case of a guarantee to answer for the price of goods to be supplied to a married woman (y), or goods (not necessaries) to be sold to an infant (z), or other persons incompetent to contract, no doubt the party guaranteeing, though professedly contracting only in the character of a surety, would be responsible. He could not object the incompetency of the (supposed) principal, or he might, by construction of law, be treated as the principal. For the same reasons, a person who, without authority, contracts as agent for another person, may be viewed as the principal and absolute debtor (a).

(a) The law of principal and surety is ably elucidated in the treatises of Mr. Fell and Mr. Theobald; see also 3 Chitty Com. Law, Index, tit. Guarantee. The soundest principles upon this subject are to be found in Pothier on Obligations. This branch of the

law of contracts seems to be imperfectly developed in the French Civil Code.

(y) See Muggs v. Ames, 4 Bing. 470. (2) As to the sale of goods to an infant, post, 515.

(a) Ante, 227; or sued for not hav

We have already observed, that although a contract be in writing, a consideration is necessary to give it validity (b). Consequently, in the case of a guarantee, which must be in writing, it is essential that there be a sufficient consideration for the party's promise to be answerable for the debt or default of the third person. A promise to pay a debt already incurred by another is not binding without some new consideration, as forbearance, &c. But it seems that if A. verbally request B. to credit another person for goods, &c., and he do so, the benefit to the latter, thus conferred at the instance of B., is sufficient to support a written promise by him to be responsible (c). And it was observed by Best, C. J., in the case of Morley v. Boothby (d), that " no court of common law has ever said that there should be a consideration directly between the persons giving and receiving the guarantee. It is enough if the person for whom the guarantor becomes surety receives a benefit, or the person to whom the guarantee is given suffer inconvenience, as an inducement to the surety to become guarantee for the principal debtor." It has been remarked, that there must in general be a mutuality of obligation, in order to give effect to a contract executory on both sides (e). In the case of a guarantee, it is not essential, as regards the surety, that the creditor should bind himself to supply goods, &c., for which, if furnished, the surety is to be answerable collaterally (f). But it is necessary that the guarantee be accepted-there must be a mutual assent that it shall have operation-a mere offer to guarantee is not binding, unless duly accepted (g).

It seems that the contract of a surety is subject to the ordinary rules in regard to the construction of contracts (h).

Indemnities. In many instances the law implies a promise of indemnity. Thus, in the case of landlord and tenant, there is, it seems, an implied promise by the landlord to the tenant, that no distress shall be made by the superior landlord for the rent due to him; at least, whilst the tenant in possession pays his

ing authority, see Polhill v. Walter, 3 B. & Ad. 114; ante, 227, 228, and see Wilson v. Barthrop, 2 M. & W. 863.

(b) Ante, 4, 5. (c) Ante, 52. As to the consideration of forbearance, &c., see ante, 35 to 38.

(d) Morley v. Boothby, 3 Bing. 113; and see ante, 30, 31. (e) Ante, 15.

(f) See per Parke, B., Kennaway v. Treleavan, 5 M. & W. 500.

(g) Ante, 11, 13, 14, 17. Mozley v. Tinkler, 1 C., M. & R. 692; 5 Tyr, 416, S. C.

(h) Ante, 74, 96.

rent to his immediate landlord (i). But in Upton v. Fergusson (k), where it appeared that the plaintiff took of the defendant a house at a yearly rent, under an agreement, by the terms of which the latter undertook that, up to the date of the agreement, he had paid, or would pay or discharge, "all arrears of rent, rates, taxes, or assessments," and the former agreed that, "from and after that day, the same should be kept paid by him for the period he might occupy the premises," and at the expiration of the first quarter the superior landlord distrained for rent; it was held that there was no implied duty in the defendant to indemnify the plaintiff against this claim, although the agreement between them stipulated for a yearly rent, the defendant having by the subsequent clause expressly undertaken to keep the reserved rent paid. If a person be employed to do an act not manifestly and in itself unlawful, in assertion of a right assumed by the employer, as to distrain, sell goods, &c., there is a tacit promise by the latter to the party acting as agent, &c., that he shall be protected or indemnified against the consequences of doing the act required, and which the employer has apparently the right to execute or cause to be performed (1). But it should seem that where a broker enters under an ordinary warrant of distress, and takes goods upon the premises that are privileged by law from distress, he cannot claim an indemnity from his employer (m). If A. become surety or bail (n) for B., at his request, there is an implied promise to indemnify him. And there is an implied contract between sureties to contribute equally in discharging the demands for which they become responsible for their principal (o). But a surety who defends an action brought to recover monies due from the principal, cannot recover contribution from his cosurety for the costs of the action, unless authorised by him to defend (p).