West v. Holmes

The opinion of the court was delivered by Redeield, Ch. J. I. We could scarcely regard money lost upon a wager, as coming within the sec. 12 chapter 110 of the Compiled Statutes, as being lost at a “game or sport.” We suppose this refers to gaming only, and that the word sport is added to game, so as to show that game was intended to be used in its utmost extension. Still we think it was only intended to include money lost at some game or play, either of skill or chance. This is the view taken of the penal portion of the statute in Collamer v. Day, 2 Vt. 144, and we do not well see how any other construction can fairly be put upon the remedial portion of the statute. II. In this state all wagers are held illegal. Collamer v. Day. And the law, in regard to such wagers, is very well settled. The counsel do not differ essentially in regard to it. The party making such a wager, and depositing' the wager in the hands of a stake-holder, may, by demanding it back, at any time before it is paid over to the winner, by his express or implied assent, entitle himself to recover the money or other thing. Tarleton v. Baker, 18 Vt. 9, and cases cited by Royce, Ch. J. [535] Applying this rule to the present case, it seems to us that this money was paid over to defendant, by the stake-holder, by the consent of the plaintiff. It was done in his presence, without any objection, and when he knew that the parties were together for the express purpose of paying over the money. It is true plaintiff did not intend to lose hig right to recover the money, orjto have defendant keep it, or suppose he was to keep it, but still he must have intended to have the money paid over to defendant, and then immediately to demandit of him, supposing doubtless, that this would be sufficient to enable him to recover it of defendant. But his misapprehension in regard to the law, makes no difference, in regard to the plaintiff’s rights. Having consented to have the money paid over, it makes no difference whether he demanded it in one minute, or one day, or thirty, as it seems to us. The consent to its being paid to defendant gives him the right to retain it, as the court will not interfere, after the illegal wager is consummated. If plaintiff had demanded the money of the stake-holder, and he had subsequently paid it over to defendant, he would still be liable to an action at the plaintiff’s suit, or the plaintiff might, if he so elected, pursue the money into defendant’s hands, or those of any other, to whom it comes. But upon'the proof, in the present case, it would certainly be undesirable to say, the plaintiff might sue the stake-holder, for paying over the money against the consent of the plaintiff. Judgment affirmed.