Procedure.— Determination of cases, civil and criminal, by means of wager or analogous forms of procedure is a characteristic feature of archaic law. The legis actio sacramenti at Rome—at first a real, then a fictitious wager—the wager of battle and of law in England, of the highest antiquity in their origin, survived up to a comparatively late period in the history of both legal systems. The form of the wager survived long after its reason had been forgotten. The general prevalence of the wager form of proceeding is perhaps to be attributed to the early conception of a judge as a mere referee who decided the dispute submitted to him, not as an executive officer of the state, but as an arbitrator casually called in (see Maine, Ancient Law, c. x.). Wager of battle in England was a mode of trial which was allowed in certain cases, viz., on a writ of right (see Writ), and on appeals of treason and felony (see Appeal). A full account of the judicial combat will be found under Duel and Ordeal. Wager of law (vadiatio legis) was a right of a defendant in actions of simple contract debt and of detinue. It superseded the ordeal (itself called lex in the Assize of Clarendon and other ancient constitutional records). The mode of proceeding in a wager of law was an interesting relic of that system of compurgation—traced by Blackstone to the Mosaic law, Ex. xxii. 10—which was employed in many legal systems, especially the Scandinavian, and had probably an appreciable effect on the development of the English Jury ( q.v.) It also has some points of resemblance, perhaps some historical connexion, with the sponsio and the decisory oath of Roman law, and the reference to oath of Scots law (see Oath). The use of the oath instead of the real or feigned combat—real in English law, feigned in Roman law—no doubt represents an advance in legal development. The technical term sacramentum is the bond of union between the two stages of law. In the wager of law the defendant, with eleven compurgators, appeared in court, and he swore that he did not owe the debt or (in detinue) that he did not detain the plaintiff’s chattel; while the compurgators swore that they believed that he spoke the truth. It was an eminently unsatisfactory way of arriving at the merits of a claim, and it is therefore not surprising to find that the policy of the law was in favour of its restriction rather than of its extension. Thus it was not permitted where the defendant was not a person of good character, where the king sued, where the defendant was the executor or administrator of the person alleged to have owed the debt, or in any actions other than those named, even though the cause of action were the same. No wager of law was allowed in assumpsit, even though the cause of action were a simple debt. This led to the general adoption of assumpsit— proceeding originally upon a fictitious averment of a promise by the defendant—as a means of recovering debts. Where a penalty was created by statute, it became a common form to insert a proviso that no wager of law was to be allowed in an action for the penalty. Wager of law was finally abolished by 3 aud 4 Will. IV. c. 42. Another form of the judicial wager in use up to 1845 was the feigned issue by which questions arising in the course of Chancery proceedings were sent for trial by jury in a common law court. The plaintiff averred the laying of a wager of £5 with the defendant that a certain event was as he alleged; the defendant admitted the wager, but disputed the allegation; on this issue was joined. 8 and 9 Vict. c. 109 enabled such questions to be referred by the Chancery to the common law courts in a direct manner.

Substantive Law.— A wager may be defined as “a promise to pay money or transfer property upon the determination or ascertainment of an uncertain event” (Anson, Law of Contract, p. 171). At common law wagers were legally enforceable, subject to certain rules dictated by considerations of public policy, e.g., that they did not lead to immorality or breach of the peace, or expose a third person to ridicule. Actions or wagers were not favoured by the judges; and, though a judge could not refuse to try such an action, he could, and often did, postpone it until after the decision of more important cases. Parliament gradually intervened to confine the common law within narrower limits, both in commercial and non-commercial wagers, and both by general and temporary enactments. An example of the latter was 7 Anne c. 16, avoiding all wagers and securities relating to the then war with France. The earliest general enactment was 16 Car. II. c. 7, prohibiting the recovery of a sum exceeding .£100 lost in games or pastimes, or betting on the sides or hands of the players, and avoiding securities for money so lost. 9 Anne c. 19 avoided securities for such wagers for any amount, even in the hands of bona fide holders for value without notice, and enabled the loser of £10 or upwards to sue for the money he had lost within three months. The hardship of the Act, as it affects securities in the hands of bona fide holders, was remedied by 5 and 6 Will. IV. c. 41, which enacted that such securities should be taken to be held for illegal consideration. Finally, 8 and 9 Vict. c. 109, § 18, enacted “that all contracts or agreements, whether by parole or in writing, by way of gaming or wagering shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event on which any wager shall have been made; provided always that this enactment shall not be deemed to apply to any subscription, or contribution, or agreement to subscribe or contribute, for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise.”

What is a lawful game depends upon numerous statutes from 33 Hen. VIII. c. 9 downwards, among which may be classed the Lottery Acts (see Lotteries). A curious exception is made in some of the statutes in favour of unlawful games if they are played in a royal palace. The mere making of a wager is not now illegal, as it was under the earlier statutes; it is simply unenforceable. The winner has no legal remedy against the loser or the stakeholder. The loser can recover his stake where it still remains in the stakeholder’s hands or has been paid over to the winner after notice from the loser to the stakeholder not to pay it over. He cannot recover where it has been paid over to the winner without notice. The agent in a wagering contract may have legal rights against his principal, though the principal has none against the other party. Agreements between buyers and sellers of stocks and shares to pay or receive differences only (sometimes known as “time-bargains”) are within 8 and 9 Vict. c. 109, but a broker employed to speculate on the understanding that only differences should be paid by his principal may recover indemnity against the principal. Employment of an agent to bet in his own name may imply an authority to pay the bet if lost, an authority that may become irrevocable after payment to the winner. Though wagers themselves are now void and not illegal, securities for wagers, by the combined effect of 5 and 6 Will. IV. c. 41 and 8 and 9 Vict. c. 109, are still either illegal (as a bet on the result of a game) or void (as a bet on the result of something other than a game, such as a contested election). This difference is important as affecting the question of burden of proof in actions on securities originally given for wagering purposes. Where the consideration is illegal, the plaintiff must show affirmatively that he gave value, but the mere absence of consideration throws on him no such duty. In commercial matters the most important examples are wagering policies of insurance, that is, policies made by persons having no insurable interest, and made void by statute (see Insurance). Sir John Barnard’s Act, 7 Geo II. c. 8 (called “An Act to prevent the infamous practice of stock-jobbing ”), prohibited contracts for liberty to accept or refuse any public stocks or securities, and wagers relating to the stocks.

In Scotland the courts refuse to try actions on wagers, as being sponsiones ludicrae, unbecoming the dignity of the courts. 9 Anne c. 19 and 5 and 6 Will. IV. c. 41 extend to Scotland, but the weight of judicial opinion is that 8 and 9 Vict. c. 109 does not. In the United States the loser may, by the legislation of some States, recover his money if he sue within a limited time, as he might have done in England under 9 Anne c. 19.