Tarleton v. Baker

The opinion of the court was delivered by Royce, J. In this state a wager, like the one in question, would be altogether illegal; not only at common law, as tending to promote corruption and a spirit of gaming, and therefore opposed to public policy, — but as being moreover expressly prohibited by statute. And so far as the law of Canada was shown upon the trial, it would seem to correspond with the English common law. It is doubtless true, that in Canada, as in England, wagers upon indifferent subjects are valid, and that an action will lie to enforce them. The evidence from Canada speaks of wagers that are not illegal, in contradistinction to those that are so, without giving instances of the latter class. But we are bound to suppose, that the exceptions to the validity of wagers in their law are not essentially more restricted than those in the English common law. Hence we infer, that it is a requisite in the law of Canada, that a wager shall not tend directly to promote immorality, nor to contravene public policy. The evidence clearly implies, that a wager between their citizens, upon the result of an election there, is regarded as illegal. And we cannot doubt, that if two of their citizens, with a view to evade the laws of their own country, should come into the United States and make such a wager, it would be pronounced illegal by the courts of Canada, Indeed, this would be but an instance of applying a conservative and self-protecting principle, which is believed to pervade the jurisprudence of all civilized nations. As between the parties to the present wager, we accordingly consider, [14] that it should be treated by the courts of this State as none the less illegal for having been made in Canada. The parties were resident citizens here, and their resort to Canada, as the place of concluding the contract, was obviously designed as an evasion of our laws. And we are at liberty to presume, that the defendant was aware of all this, and must have known, that, within the jurisdiction of Vermont, he might, under proper circumstances, be made subject to liability. The case will therefore depend upon the views to be taken of an illegal wager. It is urged, that no remedy should be afforded in such a case, whether as between the parties to the wager, or in favor of either against a stake-holder. The want of such a rule, not only as applicable to illegal wagers, but to all contracts arising ex turpi causa, has, indeed, been regretted by several of the English judges, and the rule itself receives direct countenance from some of the New York cases. But the common law does not at present, as we believe, sanction the denial of its remedies in such extensive and unqualified terms. We deem it well settled, that an illegal wager is revocable at any time before the event happens ; and that such a revocation, like the rescisión of other contracts, places the parties in statu quo, and of course entitles them to a return of their deposits. Such I understand to be the rule as between the parties themselves, when money or other property has been advanced as a stake by one to the other upon the making of such a wager. It is said to be founded in the justice and policy of allowing to each party a locus penitentim, whilst the contract remains executory. I think it might also be referred to acknowledged principles, resulting from the illegality of the contract. But according to the case of Cotton v. Thurland, 5 T. R. 405, followed by Lacaussade v. White, 7 T. R. 535, and expressly confirmed by Smith v. Bickmore, 4 Taunt. 474, arevocation before the eventhappens is not necessary, as against a stakeholder, but the loser may demand of him a return of his deposit, until, with the loser’s express or implied assent, it has been paid over to the winner. This is at present the received doctrine in the case of an illegal wager. Chit, on Cont. 637 and cases there cited. The event of an illegal wager cannot, of itself, confer a right of property upon the winner. It is only when he gets possession as owner, and that with the loser’s unrevoked assent, that the [15] stake becomes bis in the nature of an executed gift. In the meantime the stakeholder, being a mere depositary without any interest in the stake, is legally bound to restore to each party his own contribution, if thereto required. And according to these views there can be no doubt, upon the facts appearing in the present case, but that the plaintiff established a right to recover back his deposit of the defendant. Judgment of county court affirmed.