James Smith vs. Joseph Y. Brown, 3 Tex. 360

Mr. Justice Lipscomb delivered tbe opinion of the court.

This suit was instituted on an instrument of writing, signed by the defendant, in the following words, that is to say: “ I hereby bind and obligate myself to pay Josiah Smith the sum of one hundred and fifty dollars, if he furnish at the town of New Braunfels, by the 6th day of November next, any law of the state of Texas, showing that the next legislature of the said state will be composed of seventy members in both branches, this the 6th day of September, 1848.” The plaintiff alleged that he had performed the condition by the production of the law; the defendant denied that the act produced was lawfully and constitutionally passed.

It was manifestly the object of the parties in this suit to obtain a judicial decision on the constitutionality of the apportionment act of the last session of the legislature. The suit is not founded on a bona fide 'transaction. It is either an entire fiction, or it is a wager, designed to effect the same object. Fictitious cases are often presented, in the form of a wager, because every wager is not in contravention of law; but every fictitious case is a contempt of the court, and when known to be such, has subjected the parties to the severe animadversion of the court; such as fine and imprisonment.

In the matter of B. J. Elsaw, an attorney [3 Barn & Cres. 597, 10 Com. L. 193], a special case was stated for the opinion of the court; the greater part of the statement was fictitious; the court fined the attorney. The defendant, by affidavit, stated his reasons for wishing to obtain the opinion of the court speedily, and that he was not actuated by any corrupt or fraudulent motive, and that he had already incurred an expense of forty pounds in the business.

Abbott, Chief Justice, said: “It is impossible to pass over a case of this.kind without notice; but as it appears that the party before the court did not intend any fraud, and that he has already incurred an expense of forty pounds in the course of the proceedings, the object of the court, which is to prevent the repetition of such a practice in future, will be answered by ordering him to pay a fine of forty pounds, and to be imprisoned until that fine be paid.” The case in which this fiction was attempted to be practiced is entitled Fox vs.

Dodds; and it will be seen, that, on the suspicion of its being a fiction, the court had directed the master to'report whether it was a fiction. And on his report coming in, the case was stopped, and not permitted to proceed farther. In the case of Cox vs. Phillips [Hardwicke, p. 237], Lord HaRDWtoke held a fictitious action to be a contempt of court, and committed the parties and their common attorney. In Brewster vs.

Kitchen [Comb. 425], which was a feigned issue, Lord Chief Justice IIolt said, if he had not thought it had been directed out of chancery, he would not have tried it; and his Lordship added, “ Do you bring fob actions to learn the opinion of the court?” In the case of Fletcher vs. Peck, which involved very important principles, Judge Johusoh said: “I have been very unwilling to proceed to the decision of this case at all. It appears to me to bear strong evidence upon the face of it, of being a mere feigned case.

It is our duty to decide on the rights, but not on the speculations, of parties; my confidence, however, in the respectable gentlemen who have been engaged for the parties, has induced me to abandon my scruples, in the belief that they would never consent to impose á mere feigned case upon this court.” [6 Cranch, 147-8.] The same confidence in the respectable gentlemen who have been concerned in this case, in the like manner, forbids the indulgence of a suspicion that they would impose a feigned case on this court.

But notwithstanding the language in which the obligation is couched, we cannot place any other construction on it than that it is a wager. Ho one can believe that it was designed as a compensation for the trouble and labor of procuring the act of the legislature, properly authenticated, from the state department; and the record shows that on the production of the act, as evidence of performance by the plaintiff, the defendant, in his auswer, denied that it was a law, because not passed in conformity with the constitution; we shall therefore proceed to consider it as a wager.

At common law, wagers were allowed to be a good ground of action, if not on a subject forbidden by Jaw, or contrary to policy or to good morals. The case of Henkin vs. Guerss [12 East, 247], “ was an action of assumpsit upon a wager of £300, upon the practice of the court, whether a person could be lawfully held to bail on a special original for a debt under £40.

It was entered for trial at the last sittings at Guildhall, before Lord Ellenborough, Chief Justice, who, on hearing the nature of the cause, reprehended the indecorum of the attempt to obtain, in this manner, the opinion of the court upon a question of law or judicial practice, in which the parties had no apparent interest other than what the wager itself created; and his Lordship refused to try the cause, telling the plaintiff’s counsel that he might apply to this court upon the subject, if his client felt aggrieved by such refusal.” On the question being presented to the other judges, they conversed with the Lord Chief Justice on the propriety of his refusal to try a cause of this description, and his Lordship added, “ that courts of justice were constituted for the purpose of deciding really existing questions of right between parties, and were not bound to answer whatever impertinent questions persons thought proper to ask them, in the form of an action on a wager.

That though there was nothing immoral in the subject of this wager, yet he considered it as an extremely impudent attempt to compel the court to give an opinion upon an abstract question of law, not arising out of pre-existing circumstances, in which the parties had an interest.

And Le Llano, Justice, said “that if by any other proceedings in court it appeared that, in truth, no such wager had really been made, the court would know how to deal with the case.” In this case, as presented by the record, it would be extremely improper to inquire into the conduct of an independent department of the government on an issue in which the parties had no interest other than that created by the wager sued for.

The wager is obnoxious to another objection; it implicates the integrity of high functionaries of the legislative department in the discharge of an official trust, in a way in which they cannot be heard in their defense. If those functionaries are justly chargeable with the delinquencies urged in the record against them, such derelictions are not proper subjects of a wager; and if not, it would be doing them great injustice to allow their conduct to become the subject matter of a gambling contract. The ends of public justice can be attained without resorting to such means.

The court below did not err in refusing to give the plaintiff a judgment. That judgment is affirmed.