Ivey v. Phifer

COLLIER, C. J. The act of 1807, .declares that all promises, agreements, &c. made, signed, &c. by any person whatsoever, where the whole or any part of the consideration of such promise, agreement, &c. shall be for money or other valuable thing whatsoever, laid or betted at any horse race, &c. shall be utterly void and of no effect, to all intents and purposes whatsoever. [Clay’s Dig. 257, § 1,] In Wood v. Duncan, 9 Porter’s Rep. 227, it was decided that this statute makes void all “promises, agreements, &c.” by which parties stipulate to pay to each other, money, or other thing of value, upon the event of a horse race, or other description of gaming. That was an action to recover a sum of money placed by the plaintiff in the hands of the defendant as a stakeholder — being a wager between the plaintiff and a third person upon the result of a horse race. The plaintiff gave notice to the defendant not to pay over the money to the other party, who was announced by the judges of the race as the winner, and demanded that the same be paid to him— which demand was refused. It was said by the court, that “ the defendant has parted with his money, without the inducement of a consideration, either good or valuable, and upon an agreement void by the law; the plaintiff retains it without any claim, either in his own right or on account of another ,• according to well settled principles, he is bound ex aequo et bono, to refund it to him who once had possession, and has never, by any legal act parted with the right.” This decision is reaffirmed in Shackleford v. Ward, 3 Ala. R. 37 — this court deciding, that where money wagered is deposited with a stakeholder, it may be reclaimed by either party [539] before it is paid over, by a notice not to pay it, and no special demand is necessary to entitle the party giving notice to maintain an action against the stakeholder, where the latter afterwards paid it to the supposed winner. [See also, 11 Johns. Rep. 23 ; 2 Murph. Rep. 172, 458; 1 Nott & McC. R. 178; 3 Penns. R. 494; 3 N. Hamp. R. 152; 6 Yerg. R. 288; 1 C. & M. Rep. 797; 7 Price’s Rep. 540; 6 D. & R. Rep. 26; 1 C. & P. Rep. 613; 2 B. & P. Rep. 467; 9 East Rep. 52; 3 Taunt. Rep. 277.] In the case at bar, it was proved that two of the three per-, sons selected as judges of the race decided against the plaintiff, and the defendant inquired of him if he objected to the payment of the money to the other party, to which he replied, “ if all the judges have decided against me, then pay over the money; but I have understood that one of the judges has refused to decide against me.” It was further testified, that the plaintiff said the judges were gentlemen — he would not dispute what they did, and if they decided against him, Yance should have the money. There is no particular form of words necessary to inform a stakeholder that a party depositing money in his hands as a wager, objects to its payment to the supposed winner; any words expressive of a prohibition to pay, absolutely or conditionally, are quite sufficient. They should be such as would be altogether intelligible; and not of such dubious import as to leave it uncertain what the depositor intended, or whether the authority given when the money was deposited, was revoked. It cannot be assumed as a legal conclusion, that what passed between the plaintiff and defendant was insufficient to indicate the objection of the former to the delivering over the deposit. The defendant inquired if the plaintiff objected to its payment to the supposed winner, and was answered, no, if all the judges had determined that Yance was entitled to it, but he (plaintiff,) understood that one of them refused to decide against him. Is not this sufficient when connected with the fact that one of the judges had not decided adversely to the plaintiff, to establish a notice to the defendant, of the plaintiff’s objection to the payment of the money ? Does it not amount to a prohibition to give up the money, unless the judges were unanimous in their decision [540] that it had been lost ? Admitting the truth of the testimony, and these questions, we think, receive an affirmative answer. Without stopping to consider the charges prayed, in detail, it is obvious from the view taken, that one or more of them at least should have been given. The refusal to give them was not divested of error by charging that there was no proof of any notice to the defendant not to pay over the money to the winner, unless such notice could be implied from the evidence recited in the bill of exceptions, of which the jury were judges. It has been repeatedly decided by this and other courts, that where a party prays an instruction appropriate to the evidence, and conformable to law, it should be given, and the refusal cannot be excused by giving other charges of equivalent import. The jury were certainly j udg-es of what particular facts were proved, yet if they found the testimony to be true, the court might say what, it established, or it might have charged hypothetically, as is usual and proper. What has been said is decisive of the case — the judgment is consequently reversed, and the cause remanded.