Wheeler v. Spencer

Hinman, J.

No question has ever been directly raised, in this state, as to the validity of wagers at common law. The general understanding of the profession, however, has been, that they would be held to be illegal, as being contrary to the principles of morality and against sound policy. But in England, where the courts have gone so far in sustaining wagering contracts, as to subject the law to the reproval of descending from its dignity, in lending its aid to recover idle and frivolous wagers, it has been held, that a wager between two voters, on the event of an election then pending, was illegal; and no action would lie, by the winner, to recover the bet; and it was said, by Lord Mansfield, in Allen v. Hearn, 1 T. R. 56. 59, 60. It is laying them under a pecuniary influence ; it is making each of them in the nature of a candidate. If this be allowed, every other wager may be allowed. What is so easy, where a bribe is intended, as to lay a wager ? It is a colour for bribery; and is, therefore, void.”

The same doctrine has been held in New-York. Bunn v. Riker, 4 Johns. Rep. 426. And by the 1st sect, of our statute to prevent gaming, (ed. 1838, p. 305.) it is enacted, “that all contracts and securities, made and entered into, by any person or persons whatever, where the whole or any part of the consideration of such contract or security shall be for money, or other valuable things whatsoever, won, laid, or betted at cards, dice, tables, tennis, bowls, or any other game or games whatsoever; or at any horse-race, or other sport or pastime, or any wager whatsoever; or for reimbursing or re *31 paying any money, knowingly lent or advanced, at the time and place of such play, horse-racing, or other sport or pastime, to any person or persons so gaming, betting or wagering, or that shall, at such time and place, so play, bet or wager, shall be utterly void.”

The wager, therefore, in the present case, is not only illegal and .void at common law, but all gaming and wagering contracts are void, by our statute.

But it is not denied, that the wager laid in this case, was an illegal transaction. On the contrary, it is claimed, by the defendant, and insisted upon, by him, that it is of so illegal and immoral a character, that courts ought not to entertain suits upon it.

Without intimating that this stake-holder’s present regard for good morals is at all influenced by the fact that he has the money of the betting parties in his hands, it is a sufficient answer to this claim, that with a solitary exception, it is believed the cases are all the other way. In the case of Cotton v. Thurland, 5 T. R. 405. it was held, that money may be recovered back from the hands of a stake-holder, even after the event of the wager is decided, if it has not been paid over to the winner. The same doctrine was recognised in Lacaussade v. White, 7 T. R. 535. Farmer v. Russell & al. 1 Bos. & Pul. 298. Bate v. Cartwright, 7 Price 540. and Hastelow v. Jackson, 8 B. & Cres. 221. In the latter case, where the stake-holder had paid the money over to the winner, after notice not to do so, Bayley, J. says : “It has been urged, that a decision for the plaintiff, would go beyond all former cases ; for that the money has been paid over before the action was brought, and the plaintiff had done no act to rescind the wager, nor had ever intimated that he claimed his own money, and that only. But if a stake-holder pays over money, without authority from the party, and in opposition to his desire, he does so at his own peril.”

And in the supreme court of New-Yórk, in the case of Vischer v. Yates, 11 Johns. Rep. 23, the doctrine of the English c'ases on this subject, was fully sustained and ably vindicated, upon principle; and though this case was overruled, (Yates v. Foot, 12 Johns. Rep. 1.) yet no authority was cited, nor can any be found, to sustain the decision of the court of errors. And it is not, perhaps, unworthy of notice, *32 that the legislature of Ncw-Yorlt, soon after, interfered, and the common law, as it was held to be, by their supreme court. 1 Rev. Stat. N. Y. p. 662.

The doctrine to be extracted from all the cases, is this ; that money received by a third person, not a party to an illegal transaction, may be recovered back, before it is paid over, as money had and received to the plaintiff’s use; and that where an illegal wager has been laid, either party may notify the stake-holder not to pay it over to the winner, and recover back the amount of his stake; and it is wholly immaterial, whether the event upon which the money was staked, has or has not happened, when the party chooses to recall it.

Upon the agreed facts, therefore, the plaintiff in this case is entitled to recover; and no new trial should be granted.

In this opinion the other Judges concurred.

New trial not to be granted