Whitwell v. Carter

[331] By the Court, Douglass, J. The statute makes the running, trotting and pacing of horses a misdemeanor, and all persons concerned therein punishable by fine and imprisonment (Rev. Stat., Ch. 40, § 1); and also provides, that the owner of a horse, used by his permission or privity, in racing contrary to law, shall forfeit the value of the horse; and every person laying a bet or wager upon the event of an illegal race, shall forfeit the amount of the bet or wager so made, (Ib., § 4.) The bet between the parties-in this case was, therefore, criminal and illegal. We do not think it necessary to decide whether Section 9, of Chapter 192, of The Revised Statutes, giving to the loser on such betting as is therein mentioned, a right to recover back his bet from the winner where it has been paid to him, applies to a bet on a horse race, or whether, if it does, it would give an action against the stakeholder in a case like this. For, we are all clearly of the opinion, that at the common law, and' independently of any statute, if the- loser, as was done in this case, claim money he has deposited on an illegal wager, before it has been actually paid over, though it be after the wager has been decided, the stakeholder is bound to return it to him ; and if he refuse to do so, the loser may maintain an action for money had and received against him, to recover it. This is the well-settled law in England. (Cotton vs. Thurland, 5 T. R., 405; Lacaussade vs. White, 7 Ib., 531; Bakeman vs. Cartwright, 7 Price, 540; Hastelow vs. Jackson, 8 Barn. & Cress., 221; Robinson vs. Mearns, 6 Dow. & Ry., 26; Hodson vs. Terrill, 1 Cr. & Mees., 797; Mearing & Hellings, 14 Mees. & Welsb., 711.) So it is the law in Pennsylvania (McAlister vs. Hoffman, 16 Serg. & R., 147 ; Conklin vs. Conway, 18 Penn., [6 Harr.] R. 329); in New Hampshire (Perkins vs. Eaton, 3 N. H., 152; Hoit vs. Hodge, 6 Ib., 104); in Maine (Stacey vs. [332] Foss, 19 Maine R., 335); in Connecticut (Wheeler vs. Spencer, 15 Conn. R., 28); in Alabama (Wood vs. Duncan, 9 Port., 227; Scheckleford vs. Ward, 3 Ala., 37); and in Arkansas (Jeffrey vs. Ficklin, 3 Pike, 227.) It is also probably the rule in New Jersey. (Moore vs. Tripp, 1 Spen., 268.) Such seems to have been the uniform course of decisions for the last fifty years, everywhere except in New York. The Supreme Court of that State, in the case of Vischer vs. Yates (12 J. R., 23), held the same doctrine in a very elaborate opinion given by Chancellor Kent; but that decision was reversed by the Court of Errors, six Senators dissenting, in Yates vs. Foote, 12 J. R., 1. The Legislature interfered, and passed an Act which went beyond the common law rule, and allowed the loser to recover back his money, not merely from the stakeholder, but also from the winner, when it had been paid to him. Since then, the question has been of but little practical importance in that State; but the decision of the Court of Errors seems to have been recognized as the law of that State, in McKeon vs. Caherty, 1 Hall, 305 S. C. (3 Wend. 495); and in Fowler vs. Surdam, (4 Denio, 557.) Although, as the cases above cited from the other States show, it has been repudiated everywhere else ; and we think ought not to be followed here. We regard the question as too well settled upon authority, to require us to discuss it upon principle. (See 2 Pen's, on Cord., 136; 2 Smith’s Lead. Ca., 171; Broom’s Leg. Max., 159.) Judgment below affirmed. Present, Green, Martin, Wing, Copeland, Douglass, J. J. Johnson, J., having decided the cause below, did not participate.