Sponsiones ludicræ. - Game Debt. - Premium for procuring a Wife. - Private Lotteries.
Sir William Maxwell of Monrieth v. Mr Charles Murray
Date: 8 August 1760 Case No. No 62.
A minor bought rings worth L.40, promising to pay 150 guineas for them at his marriage or death. This obligation he ratified when major. Found valid.
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Sir William Maxwell of Monrieth, in his minority, granted bond to Charles Murray of Stanhope, acknowledging the receipt “of a large diamond ring, with a fine picture ring, in value upwards of L. 40 Sterling, and obliging himself to pay to the said Charles Murray for these rings, 150 guineas at the first term after his marriage or death, which of these terms should first happen, with the interest after the term of payment;” and, three years after he became major he granted a formal ratification of the same.
Sir William, in the year 1760, brought a reduction of this bond, upon the following grounds; 1mo, That it was a sponsio ludicræ, and in effect a game debt; 2do, That the bargain was usurious, an exorbitant advantage being taken of him under colour of the uncertainty of the terms of payment; and therefore, that it ought not in equity to be sustained for more than the value as estimated by the parties, viz. L. 40 and interest. Answered to the first, That this is obviously a commercial bargain, and by no means a sponsio ludicræ. Here is a merx et pretium both ascertained. The quantity of the price is indeed made to depend upon future events, but no lawyer says that this is an objection to any bargain. Even bargains of pure chance are indulged in commercial dealings, witness a jactus retis mentioned by all the Roman lawyers. Upon that foundation stand policies of insurance, bottomry contracts, the pecunia trajectitia, and a thousand others which daily occur in commerce. To the second it was answered, That this case must be distinguished from extortion, where a young heir, or any man pinched for want of money, must have it at any rate, and where the lender, taking advantage of the borrower's necessity, imposes upon him hard and rigorous conditions. This is not the present case. Sir William was under no necessity to have the rings, nor was he in circumstances to put it in any man's power to oppress him with rigorous conditions. The terms of the bargain were altogether voluntary on his part; and, supposing them unequal, that circumstance is not relevant to void a lawful bargain. But they were not unequal. Sir William is possessed of an entailed estate, and his creditors cannot draw a shilling but what they make effectual during his life. The defender, in particular, could have no hopes of his payment but by Sir William's marriage, which is one of the terms of payment of the bond. And even though Sir William is married, yet, if he die soon, the defender has little hopes of his money. He does not expect to recover even the L. 40, to which the rings were estimated.
“The reasons of reduction were repelled, and the defender was assoilzied.”
